Swellings (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457. The applicant had been granted the visa to work for an approved sponsor, but his employment ceased due to redundancy caused by the COVID-19 pandemic. This cessation of employment resulted in a breach of visa condition 8107(3)(b), which requires a visa holder to cease employment with their sponsor only for a period not exceeding 60 consecutive days. The decision under review was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether to exercise its discretion to cancel the applicant's visa, considering the circumstances of his non-compliance with visa conditions. Specifically, the Tribunal had to weigh the applicant's purpose for remaining in Australia, his compliance with visa conditions, and the degree of hardship that cancellation would cause to him and his family. The Tribunal also considered departmental guidelines regarding the exercise of general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that the applicant had not complied with condition 8107(3)(b) by exceeding the 60-day limit for ceasing employment with his original sponsor. However, it noted that the applicant had secured new employment in his trade and that his new employer, who was an approved sponsor, wished to nominate him for a Subclass 482 visa, indicating his continued purpose of stay in Australia aligned with his visa's intent. Crucially, the Tribunal found that cancelling the visa would cause significant emotional and financial hardship to the applicant and his family. Furthermore, it recognised that the applicant possessed specialised skills that were not readily available in the local labour market, suggesting that cancellation could also lead to economic hardship for his prospective employer, who had already been affected by the pandemic.

The Tribunal concluded that the circumstances, including the pandemic-induced redundancy and the significant hardship that cancellation would entail, warranted the exercise of discretion in favour of the applicant. Accordingly, the decision under review was set aside, and the Tribunal remitted the matter for reconsideration.