Jung (Migration)

This matter concerned an application by a holder of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), to review the Minister's decision to cancel their visa. The ground for cancellation was that the applicant had ceased employment with their sponsoring employer, thereby allegedly breaching a condition of the visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation, specifically a breach of visa condition 8107(3)(b) which limits the period a visa holder can cease employment to 90 consecutive days, was made out. The applicant had ceased employment with their original sponsor due to the sale of the business. The new business owners lodged sponsorship and nomination applications to transfer the applicant, but these were initially refused before a third nomination was eventually approved. The Tribunal found that while the applicant had ceased employment with the original sponsor, the purpose of the visa continued to exist.

In exercising its discretion, the Tribunal gave significant weight to the fact that the applicant was now the subject of an approved nomination to work in the same occupation and at the same venue, albeit for a different employer. The Tribunal also noted that the cessation of employment was not due to the applicant's fault and that the new sponsor had intended to employ the applicant from the outset. Considering these circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.