Bhattarai Gurung (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Bhattarai Gurung. The dispute arose because the applicant ceased employment with her sponsoring business, which was taken over by new management that did not wish to continue the sponsorship. This cessation of employment exceeded the 90-day period permitted by condition 8107 of her visa.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The applicant did not dispute that she had ceased employment for more than 90 consecutive days, thus breaching visa condition 8107 and establishing the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). However, this ground did not mandate cancellation, allowing the Tribunal to consider all relevant circumstances.

In exercising its discretion, the Tribunal had regard to the applicant's circumstances, including her 14 years of residence in Australia, her intention to remain employed in her sponsored position, and her unsuccessful attempts to secure new sponsorship. The Tribunal also considered the impact of the Covid-19 pandemic, which prevented her return to Nepal, and her compelling reasons to remain in Australia, including her son's birth in Australia and her desire to utilise her acquired skills. Furthermore, the Tribunal noted that the visa was due to expire shortly. Weighing these factors, the Tribunal concluded that the circumstances favouring non-cancellation outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.