SRITAWAN (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)). The dispute arose when the Department of Home Affairs formed the view that the applicant had breached a condition of their visa by ceasing employment with their sponsor and failing to secure new employment or sponsorship within the prescribed timeframe. The applicant sought review of this decision to cancel their visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8107(3)(b) of their visa, which stipulated the period within which a visa holder could remain in Australia after ceasing employment with their sponsor. The Tribunal also had to consider all relevant circumstances in deciding whether to exercise the discretion to cancel the visa.

The Tribunal found that the applicant had indeed ceased employment with their sponsor on 6 May 2017 and, at the time of the delegate's decision, had not been employed in a nominated position for more than 90 days. This satisfied the ground for cancellation under section 116(1)(b). However, the Tribunal then considered the exercise of discretion. It noted the applicant's efforts to find new sponsorship, including travelling to Melbourne in search of work and lodging new nomination applications. The Tribunal was satisfied that the applicant had attempted to regularise their migration status and that the delay in securing a new nomination was outside their control, particularly given the difficulties in finding suitable cooks in regional Australia. The Tribunal also had regard to the applicant's submissions that a cancellation would compel their departure from Australia and that a nomination was in process at the time of cancellation.

Ultimately, the Tribunal concluded that, in light of all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.