Saipanya (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Saipanya. The visa had been granted on the basis that she would work for N S Oil Pty Ltd as a Massage Therapist. The dispute arose because the applicant was allegedly not working in her nominated occupation, but rather as a receptionist, and her employer's sponsorship agreement had been terminated.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel Ms. Saipanya's visa. This involved determining if a ground for cancellation existed under section 116(1)(b) of the Migration Act 1958 (Cth) and, if so, whether to exercise the discretion to cancel the visa. The Tribunal was required to consider various factors in exercising this discretion, including the purpose of the applicant's stay, her compliance with visa conditions, the hardship that cancellation might cause, the circumstances in which the ground for cancellation arose, and her past and present behaviour towards the Department.

The Tribunal found that the ground for cancellation under section 116(1)(b) was satisfied, as the applicant had breached condition 8107 of her visa by not working as a Massage Therapist, and instead working as a receptionist. While acknowledging that cancellation would cause hardship to the applicant and her family in Thailand, the Tribunal weighed this against the fact that the applicant had been in Australia on temporary visas since 2006 and had breached her visa conditions since the grant of the Subclass 457 visa. The Tribunal also noted that evidence from other employees contradicted the applicant's claim that she was only working as a receptionist due to a sore shoulder.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa, concluding that, on the totality of the circumstances, the visa should remain cancelled.