RAIGAMAGE (Migration)

This matter concerned the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457, held by the applicant. The applicant had been granted the visa in July 2015 to work as an ‘ICT Customer Support Officer’ with Community Training Initiatives Pty Ltd. Her employment with this sponsor ceased in January 2016 due to redundancy. The Department of Immigration subsequently issued a notice of intention to consider cancellation, noting that the applicant had not returned to work for her sponsor or an associated entity within 90 days of ceasing employment. The Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant's subclass 457 visa should be cancelled under section 116 of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to consider the ground that the applicant had ceased to be employed by her sponsoring employer and had not returned to employment with that sponsor or an associated entity within 90 days. If this ground was established, the Tribunal then had to consider whether, in all the relevant circumstances, the visa should be cancelled, including any submissions made by the applicant to show cause why it should not be cancelled.

The Tribunal found that the ground for cancellation was established, as the applicant's employment had ceased and she had not returned to employment within the prescribed 90-day period. In considering the exercise of discretion, the Tribunal noted that while the onus of establishing facts leading to cancellation rests with the Minister, the applicant bears the responsibility of providing sufficient detail to enable the decision-maker to establish relevant facts. The Tribunal considered the applicant's submissions and evidence, including her efforts to find new employment and the lack of labour shortages in the information technology sector. However, it also took into account the applicant's responsibility to abide by her visa conditions and the fact that her qualifications were recognised in Sri Lanka.

The Tribunal affirmed the decision to cancel the applicant's visa. It concluded that the discretion to cancel the visa should be exercised, finding no compelling reasons to depart from the Department's decision.