Kim (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving an applicant whose Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), was subject to cancellation. The dispute arose after the applicant ceased employment with his sponsoring company, The Sweet Life Farms Pty Ltd, and subsequently had a nomination application made by a new sponsor, GFH Enterprises Pty Ltd, refused due to failing to meet an English language requirement. Although the applicant later achieved the required English test score and his new nomination was approved on appeal to the Tribunal, the Department's initial decision to cancel his visa remained under review.

The primary legal issue before the Tribunal was whether to affirm or set aside the decision to cancel the applicant's Subclass 457 visa. This required the Tribunal to consider various factors relevant to the exercise of its discretion under the relevant provisions of the Act and Regulations, including the purpose of the visa holder's stay, compliance with visa conditions, potential hardship to the applicant and any family members, the circumstances in which the ground for cancellation arose, and any relevant international obligations. The Tribunal was also guided by the Department's Procedures Advice Manual (PAM3) concerning general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that the applicant's original purpose for the visa ceased upon his resignation. However, it gave significant favourable weight against cancellation to the fact that the applicant found a new employer and lodged a nomination within the prescribed 60-day period. The Tribunal noted that the initial refusal of the new nomination was solely due to the applicant's failure to meet the English language requirement by a narrow margin, a problem he diligently rectified by achieving the required score. The Tribunal also considered the potential hardship the applicant might face if his visa were cancelled, particularly given his efforts to resolve the issue and the subsequent approval of his new nomination. The Tribunal concluded that the circumstances of the case did not warrant visa cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.