McNealis (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose when the Minister, through a delegate, decided to cancel the applicant's visa on the grounds of non-compliance with visa conditions. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with a condition of her visa, which stipulated that the period of cessation of employment could not exceed 90 days.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) of her visa by ceasing employment for more than 90 consecutive days. This finding was based on information from the Department's records and the applicant's own admission during the hearing. Although the ground for cancellation was established, it did not mandate cancellation under section 116(3). Therefore, the Tribunal proceeded to consider the exercise of discretion. The Tribunal weighed the circumstances, including the applicant's purpose for being in Australia, the temporary nature of the 457 visa, and the applicant's explanation for her non-compliance, which included a mistaken assumption that her employer would manage visa arrangements. Ultimately, the Tribunal concluded that the reasons for cancelling the visa outweighed those for not cancelling it.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.