Caren (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who held a visa requiring her to work only in the occupation listed in her approved nomination, which was Accountant, was found to be undertaking duties outside of this nominated occupation. The core dispute revolved around whether the cancellation of her visa was justified, given the circumstances under which she performed these additional duties.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the visa holder had failed to comply with a condition of her visa. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances. The applicant contended that she was compelled by her employer to undertake unrelated duties and that she had alerted management to this unfair treatment.

The Tribunal found that the applicant had indeed failed to comply with visa condition 8107(3)(a)(i) by working outside her nominated occupation. However, as this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretion. The Tribunal was persuaded by evidence that the applicant was unfairly treated and exploited by her employer, who was subsequently found to have engaged in fraudulent conduct. Considering the applicant's primary purpose of working in Australia, her efforts to comply with her accounting duties while undertaking additional tasks, her fear of losing employment, and the significant hardship to her family if she were forced to leave Australia, the Tribunal concluded that cancelling her visa would be an inappropriate exercise of discretion.

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