Mole (Migration)

This matter concerned the review of a decision by the Department to cancel the Training (subclass 407) visa of a citizen of the United States of America. The applicant had been granted the visa on 17 October 2022, but his sponsor terminated the training arrangement just four days later. The Department subsequently cancelled the visa on 16 April 2024, and the applicant was granted a Bridging visa E. The case was heard by Karen McNamara, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's Training (subclass 407) visa should have been cancelled under section 116(1)(g) of the Migration Act 1958 (Cth), specifically in light of regulation 2.43(1)(ia) of the Migration Regulations 1994. This regulation requires the Minister to be satisfied that the visa holder has ceased to have a genuine intention to stay temporarily in Australia for the purpose for which the visa was granted. If this ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation existed, as the applicant had ceased training activities with his sponsor shortly after the visa was granted and had not obtained subsequent sponsorship. This indicated he no longer had a genuine intention to undertake the training for which the visa was granted. However, the Tribunal then exercised its discretion not to cancel the visa. It had regard to various factors, including the applicant's attempts to find alternative sponsorship, his pursuit of further formal education and future employment options, his length of residence in Australia, his relationship with an Australian citizen, his social relationships and support networks, and the significant psychological and emotional hardship cancellation would cause. The Tribunal concluded that, on balance, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Training (subclass 407) visa.