Ventura (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr Ventura against the cancellation of his Temporary Business Entry (Class TU) visa, Subclass 457 (Temporary Work (Skilled)). The cancellation arose because Mr Ventura ceased employment for more than 60 days. Mr Ventura contended that he ceased employment due to being a victim of a workplace assault, after which he was sacked after approaching the police. He also raised issues of financial hardship and the existence of a new nomination by another sponsor.

The AAT was required to determine whether to exercise its discretion to set aside the cancellation decision. In doing so, the Tribunal considered various factors outlined in the Department's Procedures Advice Manual (PAM3), including the purpose of Mr Ventura's travel and stay in Australia, his compliance with visa conditions, the degree of hardship that may be caused by cancellation, the circumstances in which the ground for cancellation arose, and Mr Ventura's past and present behaviour towards the Department.

The Tribunal found that Mr Ventura had a compelling need to remain in Australia to maintain his family's financial status and that he had found a new sponsor. It also noted that, apart from the breach of condition 8107, there was no evidence of other non-compliance. The Tribunal gave significant weight to the financial and psychological hardship Mr Ventura had experienced, including medical bills and application fees, as well as the stress of being away from his family in the Philippines. Crucially, the Tribunal was satisfied that the circumstances leading to the ground for cancellation were beyond Mr Ventura's control, specifically referencing the workplace assault and his subsequent dismissal after reporting it to the police. The Tribunal also noted the absence of adverse information regarding his behaviour towards the Department, other than a failure to respond to a Notice of Intention to Cancel.

The Tribunal concluded that the circumstances weighed heavily against cancellation and that it was appropriate to set aside the decision under review.