TIPU (Migration)

The Administrative Appeals Tribunal considered the case of TIPU, an applicant for a Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay)). The dispute arose from the Minister's decision to cancel the applicant's visa on the grounds that he had ceased employment and remained unemployed for more than 90 consecutive days, thereby breaching a condition of his visa. The applicant sought review of this cancellation decision.

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 established, and if so, whether the discretion to cancel the visa should be exercised in the applicant's favour. The Tribunal was required to determine if the applicant had indeed failed to comply with the condition that his period of unemployment must not exceed 90 consecutive days. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy and the specific facts of the applicant's situation, in deciding whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had ceased employment and that this period of unemployment had exceeded 90 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion. The Tribunal had regard to the applicant's evidence, which included a pending nomination, payslips, work contracts, and a statement from his current employer. It accepted that the applicant's purpose in Australia was to work and noted he had a wife and an Australian-born child. The Tribunal was persuaded by the applicant's explanation for his employment cessation, which involved significant personal and family circumstances, including his wife's medical difficulties after childbirth and his efforts to secure suitable employment closer to his family support network. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled.

The Tribunal set aside the decision to cancel the first applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction with respect to the other applicants.