Raina (Migration)

This case concerned the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), held by the first applicant. The visa was cancelled by the Department of Home Affairs due to the applicant ceasing employment for more than 90 days, thereby breaching a condition of her visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether to affirm the delegate's decision to cancel the first applicant's visa. This required the Tribunal to consider the applicant's circumstances, including the reasons for her cessation of employment, her efforts to find new employment, the potential hardship she and her husband might face if the visa were cancelled, and other relevant factors, to determine if the cancellation was the correct and preferable exercise of discretion. The Tribunal also had to consider its jurisdiction concerning the second applicant, who was the first applicant's husband.

The Tribunal reasoned that the applicant's breach of condition 8107(3)(b) was substantial, as she had been unable to secure a new sponsoring employer for an extended period, which was inconsistent with the purpose of a 457 visa. While acknowledging that the circumstances leading to her cessation of employment, including the closure of her employer's business and her own medical complications, were beyond her control, and that she had experienced hardship, the Tribunal found these factors did not outweigh the seriousness of the breach and the applicant's prolonged inability to secure new employment. The Tribunal also noted that the applicant's desire to remain in Australia to study was not consistent with the purpose of her 457 visa.

Ultimately, the Tribunal affirmed the decision to cancel the first applicant's subclass 457 visa. The Tribunal found that, on balance, the matters favouring cancellation outweighed those against it. The Tribunal also determined that it lacked jurisdiction to consider the second applicant's circumstances.