Konena (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Temporary Work (International Relations) (subclass 403) visa was cancelled. The applicant had been granted the visa to work for a specific sponsor under the Pacific Australia Labour Mobility Scheme. The dispute arose when the applicant ceased employment with the sponsoring employer, leading to the Department of Home Affairs considering cancellation of the visa. The applicant claimed to have been forced to resign due to bullying by a human resources representative.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's visa should be affirmed. This required the Tribunal to determine if a ground for cancellation existed under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1A)(a) of the Migration Regulations 1994, which relates to a visa holder ceasing to have a genuine intention to stay temporarily in Australia to carry out the work for which the visa was granted. If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion under section 116 to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant's cessation of employment with the sponsoring employer, Patane Produce (WA) Pty Ltd, meant he no longer had a genuine intention to remain in Australia for the purpose for which the visa was granted, thus establishing a ground for cancellation. In exercising its discretion, the Tribunal considered factors including the purpose of the visa, compliance with conditions, potential hardship, the circumstances of the cancellation ground, and the applicant's behaviour. While acknowledging the applicant's claims of financial hardship for his family and a forced resignation, the Tribunal found insufficient evidence to support these claims, particularly regarding the forced resignation, and concluded that the discretionary factors favouring non-cancellation did not outweigh the considerations supporting cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 403 visa.