Puri (Migration)

The Administrative Appeals Tribunal (AAT) considered a case involving the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Puri. The dispute arose when the applicant's approved sponsor, City Hairstylist Pty Ltd, had its approval as a standard business sponsor cancelled and was barred from future applications under section 140M of the Migration Act 1958 (Cth). This cancellation of sponsorship triggered a prescribed ground for visa cancellation under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant's Subclass 457 visa should be cancelled, notwithstanding the existence of a prescribed ground for cancellation. The Tribunal was required to determine if the cancellation was warranted, considering all relevant circumstances and exercising its discretion. This involved assessing whether the circumstances surrounding the sponsor's cancellation were beyond the applicant's control and evaluating any compelling or compassionate factors presented by the applicant.

The Tribunal reasoned that while a prescribed ground for cancellation under section 116(1)(g) of the Act, specifically regulation 2.43(1)(l)(iv), was established due to the sponsor's cancellation, this ground did not mandate visa cancellation under section 116(3). The Tribunal carefully considered the applicant's submissions, which highlighted that the sponsor's cancellation was not due to any fault of her own. It also took into account the subsequent difficulties the applicant faced in securing a new nomination due to changes in visa requirements and the occupation being removed from the list of eligible 457 occupations. The Tribunal found that the applicant had demonstrated compelling and compassionate circumstances, including hardship caused by the cancellation and her ongoing contribution to the Australian workforce and training initiatives.

On balance, the Tribunal concluded that the applicant's Subclass 457 visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.