Nguyen (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, subclass 457. The applicant sought that the Tribunal exercise its discretion under section 116(1) of the Migration Act 1958 (Cth) to not cancel his visa.

The primary legal issue before the Tribunal was whether to exercise the discretion to cancel the applicant's visa, notwithstanding that the grounds for cancellation under section 116(1)(b) of the Act were found to exist. The Tribunal was required to consider all the circumstances of the case, including matters raised by the applicant and guidance from the Department's Procedures Advice Manual (PAM3) concerning general visa cancellation powers.

The Tribunal reasoned that cancellation of the applicant's visa would have significant consequential impacts, including the cancellation of his wife's and daughter's visas, rendering them unlawful non-citizens and subject to detention. The applicant's daughter, Thuy, had completed her high school education in Australia and was undertaking tertiary studies with a view to a nursing career. Her studies would be terminated if she were required to return to Vietnam due to her financial dependence on her parents, and re-entry into a comparable program in Vietnam would be difficult given her Australian education. The applicant also submitted that his family would face extreme financial hardship upon return to Vietnam, given their age and lengthy period of residence in Australia. Crucially, the Tribunal accepted the applicant's testimony that the breach of his visa conditions arose from circumstances beyond his control, noting that PAM3 guidelines generally advise against cancellation in such situations. Furthermore, the Tribunal noted that a new employment sponsor had been approved for the applicant since the hearing.

The Tribunal exercised its discretion in favour of the applicant and set aside the decision to cancel his visa.