Dang (Migration)

This matter concerned an application by Mr Dang for review of a decision to cancel his Subclass 457 (Business (Long Stay)) visa. The cancellation was based on the applicant ceasing to work in his nominated occupation and exceeding 90 consecutive days without employment, thereby breaching condition 8107 of his visa.

The Administrative Appeals Tribunal was required to determine whether the power to cancel the applicant's visa should be exercised, considering the circumstances surrounding the cessation of his employment. The Tribunal had to assess whether the applicant's actions and the reasons for his unemployment warranted the cancellation of his visa, particularly in light of potential exploitation and abuse by his former employer.

The Tribunal found that while the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was established, the cancellation was not mandatory. In exercising its discretion, the Tribunal considered that the applicant's employment ceased due to extenuating circumstances, including being forced to work excessive hours and facing threats regarding his permanent residency application. The Tribunal noted the applicant's honest evidence, his attempts to regularise his status, and the exploitation he endured. It also considered his qualifications, English language skills, overseas experience, and the financial burden and impact of s.48 of the Act if his visa were cancelled.

Ultimately, the Tribunal concluded that the factors favouring not cancelling the visa outweighed those in favour of cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.