Hawkes (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), held by an Airconditioning and Refrigeration Mechanic. The dispute arose because the visa holder ceased employment with their sponsor, having been stood down without pay, and subsequently remained unemployed for more than 60 days.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the visa, notwithstanding that the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was established. The Tribunal was required to consider various factors in exercising this discretion, including the purpose of the visa holder's stay, their compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal reasoned that while the ground for cancellation was met, it was not a mandatory cancellation. The Tribunal placed significant weight on the applicant's efforts to secure new employment in their nominated occupation, particularly in light of the fact that their previous termination was a consequence of the COVID-19 pandemic and thus beyond their control. The Tribunal also noted the applicant's efforts to comply with visa conditions and the hardship that cancellation would likely entail.

Ultimately, the Tribunal was satisfied that the circumstances weighed in favour of the applicant. The decision under review, which cancelled the visa, was set aside.