Jatikavanij (Migration)

This matter concerned the review of a decision by the Minister to cancel the Subclass 457 (Business (Long Stay)) visa held by the applicant, Jatikavanij. The dispute arose because the applicant had ceased employment with her sponsor, Orchard Thai Restaurant, on 1 May 2017, and had not returned to work for the sponsor or an associated entity within 90 consecutive days. The Minister's delegate was satisfied that this constituted a failure to comply with condition 8107(3)(b) of the visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days. The applicant disputed this, claiming her sponsor had provided false information and that she had not been paid in full. The review was heard by Mr S Norman.

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 made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with the condition requiring her to cease employment for no more than 90 consecutive days. If this condition was breached, the Tribunal then had to consider all relevant circumstances, including matters of government policy and the applicant's personal circumstances, in deciding whether to affirm the cancellation.

The Tribunal reasoned that the applicant had indeed ceased employment for more than 90 consecutive days, as evidenced by the sponsor's notification to the Department and the lack of any information provided by the applicant or sponsor to the contrary within the stipulated timeframe. The Tribunal found that the circumstances described in subclause 8107(3A) did not apply to exempt the applicant from this condition. While acknowledging the applicant's claims of employer misconduct and financial difficulties, and the potential hardship she and her daughter might face, the Tribunal concluded that these factors did not outweigh the breach of the visa condition. The Tribunal found that the applicant understood the visa conditions and was obliged to remedy her circumstances.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.