Son (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, who was employed as a chef. The dispute arose because the applicant ceased employment with her sponsoring employer, Skypearl Pty Ltd, and subsequently faced difficulties in securing new employment and a valid nomination within the prescribed timeframe.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was justified. This required the Tribunal to determine if the applicant had failed to comply with a condition of her visa, specifically condition 8107(3)(b), which mandates that a visa holder must not cease employment for more than 90 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the applicant did cease employment with Skypearl Pty Ltd and did not commence new employment within 90 days, thus satisfying the ground for cancellation under section 116(1)(b). However, the Tribunal then considered the exercise of its discretion. It noted that the applicant had secured a new nomination and employment as a Korean Cook with Silver Vision Korean restaurant, which was approved within the relevant period. Crucially, the Tribunal gave significant weight to the hardship that would be caused to the applicant's two children, who had been raised and educated in Australia since primary school and were currently studying at university. The Tribunal concluded that cancelling the visa would cause considerable hardship to the children, who would be forced to abandon their studies and return to a country where they had not lived for over a decade.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.