CHONG (Migration)

This decision concerns the review of a visa cancellation by the Administrative Appeals Tribunal. The applicant, Ms. Chong, held a Subclass 457 (Business (Long Stay)) visa, which was cancelled by the Minister. The cancellation was based on the ground that her sponsor, WY Pty Ltd, had its sponsorship cancelled and was barred from further sponsorship under section 140M of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the ground for cancellation was established and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal first considered the legal basis for the visa cancellation. Section 116(1)(g) of the Act permits the Minister to cancel a visa if a prescribed ground applies, and regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 prescribes that a visa may be cancelled if the holder's sponsor has been cancelled or barred under section 140M. The Tribunal found that the applicant's sponsor, WY Pty Ltd, had indeed been cancelled and barred, thus satisfying the ground for cancellation under section 116(1)(g).

Having established the ground for cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal noted that this discretion was not mandatory and required consideration of all relevant circumstances, including matters outlined in the Department's Procedures Advice Manual and case law regarding the weight given to evidence. The applicant had provided evidence regarding her family circumstances, including the birth of her second child in Australia and difficulties in resuming studies in her home country. However, the Tribunal found that the applicant had not worked in her nominated occupation as an Accountant for a significant period since her visa was cancelled, had not obtained a new approved nomination, and her current employment as a part-time cashier was inconsistent with the purpose of a Subclass 457 visa. The Tribunal concluded that the purpose of the applicant's stay in Australia under the Subclass 457 visa was no longer extant.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to other applicants.