Binti Mustaffa (Migration)

The matter before the Federal Circuit and Family Court of Australia concerned an appeal by Binti Mustaffa against a decision to cancel her Temporary Skill Shortage (Class GK) visa (Subclass 482). The applicant had ceased employment with her sponsoring employer, thereby breaching visa condition 8607 by exceeding 60 consecutive days without an approved nomination. The Department had cancelled her visa, and the applicant sought review of this decision.

The primary legal issue before the court was whether the Tribunal had erred in its consideration of the relevant factors when exercising its discretion to cancel the applicant's visa. Specifically, the court needed to determine if the Tribunal had adequately considered the applicant's efforts to secure new employment, the potential hardship to her and her children, and the purpose of her stay in Australia, in light of her changed family circumstances and pending Partner visa application.

The court reasoned that while the applicant's non-compliance with condition 8607 was significant, the Tribunal had failed to give sufficient weight to other crucial factors. These included the applicant's honest and reasonable steps to procure new employment, the substantial financial, psychological, and emotional hardship that cancellation would cause her, and the fact that she was a highly skilled professional in a field experiencing a shortage. The court also noted the applicant's pending Partner visa application and the best interests of her children, which were relevant considerations in the exercise of discretion.

The court found that the Tribunal had not adequately balanced all the relevant factors, particularly the hardship to the applicant and her children, and her efforts to regularise her immigration status. Consequently, the decision under review was set aside.