KAMLA DEVI (Migration)

This matter concerned an appeal by Kamla Devi against the cancellation of her Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)). The cancellation was initiated by the Minister on the grounds that the applicant had breached a condition of her visa. The applicant had ceased employment with her sponsor, Dahab Group Pty Ltd, which subsequently ceased trading. The applicant then commenced employment with a related entity without an approved sponsorship, and her employment with the original sponsor had been terminated for more than 90 days. The appeal was heard by Glen Cranwell, a Member of the Tribunal.

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. Section 116(1)(b) permits cancellation if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8107, which requires the visa holder not to cease employment for more than 90 consecutive days. The Tribunal was also required to consider the relevant circumstances in exercising its discretion, including the reason for the breach, the hardship to the visa holder, and whether the circumstances of the breach were beyond the applicant's control.

The Tribunal found that the applicant had indeed breached visa condition 8107, as she had ceased employment with her sponsor for more than 90 consecutive days. However, the Tribunal noted that this ground did not mandate cancellation under section 116(3). In considering the exercise of discretion, the Tribunal had regard to the Department's Procedures Advice Manual, which lists various factors. The Tribunal characterised the circumstances of the breach as being beyond the applicant's control, noting that the business had been transferred and subsequently sold, and the applicant was unaware of these changes. The Tribunal also considered the hardship the applicant would face if forced to depart Australia, the fact that she had been offered new employment with a pending nomination application, and that she had not engaged in any concerning behaviour towards the Department.

Balancing these factors, the Tribunal concluded that no party would benefit from the continued cancellation of the visa, and significant hardship would be caused to the applicant. Accordingly, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.