YILDIRIM (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant. The dispute arose because the applicant ceased employment with her sponsoring employer, Sheesh Pty Ltd, and did not secure alternative sponsorship within the prescribed 60-day period, which is a ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The legal issue centred on whether the applicant's failure to secure new sponsorship within 60 days warranted cancellation, particularly in light of the reasons for her employment cessation and subsequent efforts to find new employment.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out, as the applicant did indeed cease employment and did not secure alternative sponsorship within the stipulated timeframe. However, the Tribunal then considered its discretion not to cancel the visa. It took into account that the applicant's initial departure from Australia was due to an unforeseen passport issue, which led to her sponsor being unable to wait for her return. The Tribunal also noted the applicant's credible evidence regarding her efforts to find new sponsorship, which included several refusals before a nomination was approved. Furthermore, the Tribunal gave significant weight to the applicant's compliance with her bridging visa conditions and her subsequent employment with a new sponsor, despite experiencing adverse working conditions and discrimination. The Tribunal concluded that the reasons for not cancelling the visa outweighed the reasons for cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.