Ittipol-Olarn (Migration)

This matter concerned an appeal by the applicant, Ittipol-Olarn, against a decision to cancel their Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose because the applicant had worked for businesses other than their sponsoring employer. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) had been established. The Tribunal was required to consider the relevant circumstances in exercising this discretion, including matters outlined in the Department’s Procedures Advice Manual.

The Tribunal reasoned that while the ground for cancellation existed, it did not mandate cancellation. In considering the exercise of discretion, the Tribunal noted that the applicant's purpose for being in Australia, which was to work for their sponsor, had ceased due to the abrupt termination of their employment, a situation beyond their control. The Tribunal found evidence of underpayment of wages and exploitation by the former employer, with the applicant working extensive hours and performing managerial duties without adequate remuneration. The applicant had made genuine efforts to regularise their migration status by seeking new employment and was now the subject of an approved nomination for a Subclass 482 visa with a new employer, who attested to their skills and value to the business. The Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.