Lee (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant, Mr. Lee. The Department of Home Affairs had cancelled Mr. Lee's visa on the ground that he did not genuinely intend to perform the occupation for which the visa was granted, pursuant to section 116(1)(g) of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was whether the applicant had a genuine intention to perform the occupation nominated for his Subclass 457 visa. This involved assessing whether the circumstances surrounding the termination of his employment and the subsequent securing of a new sponsorship demonstrated a lack of genuine intention to work in the nominated occupation, or if the termination was not effectively communicated and a new, genuine intention to work had arisen.

The Tribunal found that while the applicant's initial employment had been terminated, this termination had not been communicated to the Department. Crucially, the applicant had subsequently secured approval for a new sponsorship, indicating a continued intention to work in Australia in a skilled occupation. The Tribunal was not satisfied that the ground for cancellation under section 116(1)(g) had been established, as the evidence did not demonstrate a lack of genuine intention to perform the occupation. Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.