Fatima (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), held by the applicant, Fatima. The dispute arose from the Minister's decision to cancel Fatima's visa under section 116 of the Migration Act 1958 (Cth), specifically alleging non-compliance with visa condition 8107, which requires the visa holder to work only in their nominated occupation and limits the period of unemployment.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. Condition 8107 stipulated that the applicant must work in her nominated occupation and that any cessation of employment must not exceed 90 consecutive days. The applicant claimed she was a victim of visa fraud, asserting that the sponsoring employer, "The Lester Partnership," never had a job for her, and that she never attended the workplace. She further alleged that the migration agent involved, Elizabeth Pham, worked at the same address as the sponsoring company and that assurances of employment and accommodation were not met. The applicant also stated that after the initial sponsorship failed, a nomination for a different company, Cloud Web Solutions Pty Ltd, was submitted by an intermediary, Hassan Mudassir, which she believed was also fraudulent.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out, as the applicant had not complied with condition 8107. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It had regard to various factors, including the purpose of the applicant's stay, her compliance with visa conditions, the degree of hardship that cancellation would cause, and the circumstances in which the ground for cancellation arose. The applicant claimed she was a victim of visa fraud, facing financial hardship from money lenders due to her inability to work. The Tribunal noted that the circumstances leading to the non-compliance appeared to be beyond the applicant's control, induced by alleged visa fraud.

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