Ha (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Subclass 457 (Business (Long Stay)) visa was cancelled. The dispute arose because the applicant was alleged to have breached a condition of her visa by not working in the occupation for which she was nominated. The AAT, specifically Senior Member Antoinette Younes, was tasked with reviewing the decision to cancel the applicant's visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This required the Tribunal to determine if the applicant had failed to comply with a condition of her visa, specifically condition 8107, which mandates that a visa holder must work in the most recently approved nomination. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had breached condition 8107. Evidence indicated that the applicant's nominated occupation was Massage Therapist, but she was observed working as a nail technician and admitted to performing primarily nail and hand/foot treatments, with only limited massage activities. The Tribunal also noted the sponsor's subsequent cancellation as a business sponsor for failing to ensure sponsored persons worked in their nominated occupations. In exercising its discretion, the Tribunal weighed factors for and against cancellation. While acknowledging the applicant's initial intention to study in Australia and the sponsor's positive assessment of her skills, the Tribunal gave significant weight to the applicant's non-compliance with a core visa condition and her failure to pursue her nominated occupation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.