Gelal (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Gelal. The cancellation was based on the ground that the applicant had ceased employment for more than 90 consecutive days, in breach of visa condition 8107. The applicant had taken maternity leave and, due to a change in business ownership, her original sponsor indicated the business would no longer exist and therefore could not continue her sponsorship.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the applicant did breach visa condition 8107 by ceasing employment for more than 90 days. However, the Act did not mandate cancellation in this instance, requiring the Tribunal to consider all relevant circumstances.

In exercising its discretion, the Tribunal had regard to the applicant's circumstances, including her long period of residence in Australia, the significant hardship her family would face if required to return to Nepal, and the fact that her eldest child had undertaken all schooling in Australia. Crucially, the Tribunal noted that the cessation of employment arose from the applicant taking maternity leave and the subsequent dissolution of her sponsoring business, not from any fault of her own. Furthermore, the applicant had secured new employment with a different sponsor who had lodged a nomination application for her in her nominated occupation.

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