Lochan (Migration)

The Administrative Appeals Tribunal considered the case of Lochan, a holder of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose from the Minister's decision to cancel the applicant's visa on the ground that she had ceased employment for more than 90 days, thereby breaching a condition of her visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had contravened condition 8107 of her Subclass 457 visa, which mandates that a visa holder must not cease employment for more than 90 consecutive days. If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy and the specific facts of the applicant's situation.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was indeed made out, as the applicant had been unemployed for more than 90 days. However, the Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered several factors. It acknowledged that the applicant's employment cessation was due to a business restructure and the closure of her sponsor's Australian office, circumstances beyond her control and not related to her performance. Crucially, the Tribunal noted that the applicant had diligently sought new employment and was now the subject of a new, approved nomination for the same occupation with a different approved sponsor. Furthermore, the Tribunal considered the hardship the applicant would face if her visa were cancelled, including the impact on her de facto relationship with an Australian citizen and the difficulties in re-establishing her professional and personal life.

Given these circumstances, particularly the existence of a new approved nomination and the applicant's proactive efforts to comply with visa conditions, the Tribunal concluded that it was not in the public interest to cancel the visa. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.