MAHIL (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the first applicant. The dispute arose when the Department of Immigration notified the applicant of its intention to cancel her visa due to a breach of condition 8107(3)(b), which requires the visa holder not to cease employment for more than 90 consecutive days. The applicant had ceased employment with her sponsoring employer, Sahota Café and Restaurant Pty Ltd, on 23 September 2015, and remained unemployed for a period exceeding 90 days.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the exercise of discretion favoured cancelling the visa. Specifically, the Tribunal had to assess if the first applicant had breached condition 8107(3)(b) and, if that ground was established, consider all relevant circumstances in deciding whether to affirm the delegate's decision to cancel the visa. The Tribunal also had to consider the applicant's submissions regarding her involuntary unemployment due to her employer ceasing operations, her subsequent unsuccessful attempts to find new sponsorship, and the significant hardship she would face, including financial difficulties and ongoing medical issues stemming from a car accident and other injuries.

The Tribunal found that the first applicant had indeed breached condition 8107(3)(b) of her 457 visa, as she had ceased employment for more than 90 consecutive days. While acknowledging the applicant's circumstances, including her involuntary unemployment and the hardship she faced, the Tribunal concluded that the correct and preferable exercise of its discretion favoured affirming the delegate's decision. The Tribunal noted that it had no jurisdiction with respect to the other applicants.