BINTI HASSAN (Migration)

This matter concerned an appeal by Ms Binti Hassan against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because Ms Hassan’s sponsoring entity, WMV, was deregistered by the Australian Securities and Investments Commission, meaning the business was no longer lawfully operating. This led to the Department of Home Affairs considering the cancellation of Ms Hassan's visa under section 116(1)(b) of the Migration Act 1958 (Cth) for failing to comply with visa condition 8107(3), which required her to work in the business of her sponsor. The Administrative Appeals Tribunal (AAT) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation existed. It was established that Ms Hassan’s Subclass 457 visa was subject to condition 8107(3), which mandated that she work only in the occupation specified in her nomination and only for her sponsor or an associated entity. Furthermore, if she ceased employment, this period could not exceed 90 consecutive days. The evidence presented, including information from ASIC and Ms Hassan's own acknowledgments, confirmed that her sponsor, WMV, ceased operating in May 2015, and she had been unable to work for them since that time, thereby breaching condition 8107(3)(a)(ii)(B) and 8107(3)(b). Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) of the Act was made out.

Having found that the ground for cancellation existed, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to various circumstances, including the purpose of Ms Hassan's stay in Australia, which was to settle with her family, and the significant hardship her children would face if her visa were cancelled. Despite the initial sponsor ceasing operations, Ms Hassan had made genuine attempts to secure new sponsorships, including with Al Falah and Amfah, although these were ultimately unsuccessful. She had subsequently secured a nomination with Le Montage Pty Limited and was working as a Head Chef, consistent with her bridging visa conditions. Balancing these factors, the Tribunal concluded that the evidence favouring not cancelling the visa outweighed that in favour of cancellation.

Accordingly, the Tribunal set aside the decision to cancel Ms Hassan’s Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted that it had no jurisdiction with respect to any other applicants.