Healy (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), was subject to cancellation. The dispute arose because the applicant ceased employment with her sponsor, Entity Solutions Pty Ltd, on 8 March 2017, and did not return to employment with the sponsor or an associated entity within the 60-day period permitted by condition 8107(3)(b) of her visa. The applicant acknowledged this non-compliance in her response to the Notice of Intention to Consider Cancellation.

The Tribunal was required to determine two primary issues. First, whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant failed to comply with visa condition 8107(3)(b) by exceeding the 60-day period of unemployment. Second, if the ground for cancellation was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant did indeed fail to comply with visa condition 8107(3)(b), as her employment with the sponsor ceased for a period exceeding 60 consecutive days. Consequently, the ground for cancellation under section 116(1)(b) was established. However, the Tribunal then proceeded to consider the exercise of discretion. It had regard to the applicant's circumstances, including her initial purpose for being in Australia, the fact that she had since been re-employed by the sponsor (commencing in March 2019), and crucially, the significant degree of hardship she experienced. This hardship included financial difficulties and a re-occurrence of a depressive illness, supported by evidence of professional psychological assistance.

In light of the applicant's mental health condition and her subsequent re-employment, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.