Mariano (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457, held by the applicant. The dispute arose because the applicant had ceased employment with his sponsoring company, Lay Straight Bricklaying Pty Ltd, for more than 60 consecutive days, thereby breaching visa condition 8107(3)(b). The applicant contended that this breach was beyond his control, as the sponsoring company had ceased operating.

The Tribunal was required to determine whether to affirm or set aside the cancellation decision, considering the applicant's submission that the circumstances leading to the breach were beyond his control. This involved assessing the purpose of the visa, the extent of the applicant's compliance with visa conditions, the degree of hardship that cancellation might cause, and the specific circumstances in which the ground for cancellation arose, particularly in light of departmental guidelines.

The Tribunal reasoned that while the applicant had indeed breached condition 8107(3)(b) by ceasing employment for over 60 days, this breach occurred because the sponsoring company had ceased business operations, a circumstance the applicant could not control. The Tribunal gave significant weight to the applicant's intention to continue working in Australia, his current employment with another approved sponsor, and the substantial financial and psychological hardship that cancellation would impose on his extended family in the Philippines, especially given his separation from them due to the COVID-19 crisis. Applying the departmental guidelines, which suggest that visas should generally not be cancelled when the grounds for cancellation are beyond the visa holder's control, the Tribunal found that these factors weighed heavily against cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.