Chen (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Chen. The dispute arose from the Department of Home Affairs' decision to cancel Ms. Chen's visa under section 116(1)(b) of the *Migration Act 1958* (Cth), which relates to circumstances where a visa holder has not complied with a condition of their visa or where the Minister is satisfied that the visa holder has been a risk to the health, safety or welfare of the Australian community. Ms. Chen contended that she had always worked in her nominated role for her sponsor and that any break in employment was due to maternity leave, for which she had provided sufficient evidence.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was established. This required the Tribunal to determine if Ms. Chen had failed to comply with a condition of her visa or if there were other grounds for cancellation under that section, considering the evidence presented regarding her employment history and the reasons for any cessation of work.

The Tribunal found that the evidence provided by Ms. Chen sufficiently explained any break in her employment, attributing it to maternity leave. Based on this, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(b) existed. Consequently, the power to cancel Ms. Chen's visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel Ms. Chen's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.