Pizanias (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant whose Temporary Business Entry (Class UC) visa, subclass 457, was cancelled. The dispute arose because the applicant's period of unemployment exceeded the 90 consecutive days permitted under condition 8107(3)(b) of their visa. The applicant argued that despite this breach, the cancellation decision should be set aside, citing reasons for the delay in securing new employment, including a broken promise of re-employment by their original sponsor and subsequent financial hardship.

The Tribunal was required to determine 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. The primary legal issue was whether the applicant's failure to secure new employment within 90 days constituted a breach of their visa condition, thereby providing a valid ground for cancellation. If a valid ground existed, the Tribunal then had to consider all relevant circumstances, including those outlined in the Department's Procedures Advice Manual, to decide whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant did indeed breach condition 8107(3)(b) as their employment had ceased for more than 90 consecutive days. However, the Tribunal then proceeded to consider its discretion. It noted that the purpose of the visa was to allow the applicant to work in a nominated occupation. While this purpose had ceased with the original sponsor, the applicant presented evidence of a new employer and an approved nomination for the same occupation. The Tribunal was satisfied that the applicant now had a compelling need to remain in Australia to work for this new employer, who had demonstrated a genuine need for a skilled tiler and faced difficulties in finding suitable staff. Weighing these factors in favour of the applicant against the breach of the visa condition, the Tribunal concluded that the circumstances favoured not cancelling the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's subclass 457 visa and substituted a decision not to cancel it.