Villanueva (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, Ms. Villanueva. The dispute arose from the applicant ceasing employment for more than 60 consecutive days, a breach of condition 8107(3)(b) attached to her subclass 457 (Temporary Work (Skilled)) visa. The applicant had left her employment due to bullying and harassment.

The Tribunal was required to determine whether the ground for cancellation under s 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. The Tribunal also considered the applicant's efforts to secure new employment, the potential consequences of visa cancellation, and Australia's international obligations.

The Tribunal found that the ground for cancellation was established as the applicant had indeed ceased employment for longer than the permitted 60 days. However, the Tribunal exercised its discretion not to cancel the visa. This decision was based on significant weight given to the genuine steps the applicant took to obtain alternative employment, evidenced by contemporaneous documents. Crucially, the applicant had secured new employment with an approved sponsor who had lodged an employer nomination application. The Tribunal also considered that the consequences of cancellation, including limitations on future visa applications and potential removal, would be manifestly unfair in the circumstances, particularly given the applicant’s support for her wife and children in her home country. The Tribunal also noted that the applicant would not be prevented by PIC 4013 from re-applying for a temporary work visa.

The Tribunal set aside the decision to cancel the applicant's visa.