Ho (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, subclass 457 Temporary Work (Skilled), held by Ms. Ho. The cancellation was based on the ground that her approved sponsor, Wayne Massage Pty Ltd, had its approval as a standard business sponsor cancelled by the Department of Home Affairs. Ms. Ho contended that she was unaware of the sponsor's cancellation and had continued to work for the company, providing evidence of her ongoing employment and visa compliance.

The Tribunal was required to determine whether the prescribed ground for cancellation under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 was established, and if so, whether to exercise its discretion to cancel the visa. The relevant ground for cancellation was that the sponsor, Wayne Massage Pty Ltd, had its approval as a standard business sponsor cancelled under section 140M of the Migration Act 1958. The Tribunal noted that the sponsor's approval was cancelled on 19 February 2019, and the Department had issued notices of intention to consider cancellation to Ms. Ho on 24 December 2019 and 23 January 2020, with the latter notice relying on the sponsor's cancellation.

In its reasoning, the Tribunal found that the ground for cancellation under section 116(1)(g) of the Act was established due to the cancellation of the sponsor's approval. However, this ground did not mandate cancellation, allowing the Tribunal to consider its discretion. The Tribunal weighed several factors, including the applicant's purpose for travel and stay, her compliance with visa conditions, and the hardship that cancellation would cause. It accepted that Ms. Ho travelled to Australia to work and intended to continue working, consistent with her visa's purpose. While acknowledging a technical breach of her visa conditions due to not knowing about the sponsor's cancellation, the Tribunal gave this neutral weight given the circumstances. Crucially, the Tribunal found that cancellation would cause significant financial, psychological, and emotional hardship to Ms. Ho and her family overseas, who rely on her financial support.

Consequently, the Tribunal set aside the decision to cancel Ms. Ho's visa and substituted a decision not to cancel it.