Chen (Migration)

The Administrative Appeals Tribunal considered the case of Ms Chen, who sought review of a decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The primary issue was whether the cancellation of her visa was warranted, particularly in light of her circumstances and the best interests of her child.

The Tribunal was required to determine two key questions: first, whether the ground for cancellation of the visa existed, and second, if such a ground did exist, whether the discretion to cancel the visa should be exercised, taking into account all relevant circumstances. The applicant had ceased employment with her original sponsor and commenced employment with a new employer, but the nomination application for the new employer was still undecided.

The Tribunal found that the applicant had breached a condition of her visa by ceasing employment with her original sponsor without a subsequent approved nomination. However, it concluded that the discretion to cancel the visa should not be exercised. The Tribunal took into account that the applicant had acted on the advice of her migration agent, that she had sought to transition to a new employer offering better career prospects, and that the new employer was willing to re-employ her if her visa status was rectified. The Tribunal also noted that the applicant's circumstances, including those relating to her child, weighed against cancellation.

Consequently, the Tribunal set aside the decision to cancel Ms Chen's visa and substituted a decision not to cancel it. The Tribunal also noted that it had no jurisdiction concerning a second applicant.