Lertprasert (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant, Ms Lertprasert, had been convicted of the offence of dishonestly obtaining a financial advantage by deception, for which an Intensive Correction Order was imposed. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation, identifying the conviction as a ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994. The applicant did not respond to the notice and failed to attend the hearing before the Tribunal.

The primary legal issue before the Tribunal was whether the grounds for cancellation of the applicant's visa were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had been convicted of a prescribed offence, and if that ground was established, to consider all relevant circumstances in deciding whether to cancel the visa. This involved assessing factors such as the purpose of the visa, compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal found that the applicant had indeed been convicted of the offence of dishonestly obtaining a financial advantage by deception, satisfying the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa). The Tribunal then considered its discretion, noting that the applicant's Subclass 457 visa was granted for the purpose of employment, but her employment had been terminated more than 60 days prior, meaning she had not complied with condition 8107(3)(b). Furthermore, there was no evidence of a compelling need for the applicant to remain in Australia. While acknowledging that cancellation might cause hardship, particularly given her long residence in Australia and the presence of a spouse, the Tribunal weighed these factors against the established grounds for cancellation and the non-compliance with visa conditions.

On balance, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction with respect to a second applicant.