Zeng (Migration)

This matter concerned an appeal by Ms. Zeng against the cancellation of her Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), by the Department of Home Affairs. The dispute arose because Ms. Zeng had ceased employment with her approved sponsor, MACARTH HOLDINGS PTY LTD, on 13 January 2020, and had not secured a new nomination or worked in her nominated occupation as a Baker for over 12 months. The appeal was heard by the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether to affirm the Department's decision to cancel Ms. Zeng's visa. This involved considering the exercise of discretion in relation to the cancellation, taking into account various factors including those specified in the Department's Procedures Advice Manual (PAM3) and any matters raised by the applicant. The Tribunal needed to weigh the applicant's circumstances against the grounds for cancellation.

In its reasoning, the Tribunal noted that while there were no mandatory factors to consider for the exercise of discretion, it had regard to the applicant's purpose for being in Australia, her compliance with visa conditions, the degree of hardship cancellation might cause, and the circumstances in which the ground for cancellation arose. The Tribunal gave significant weight in favour of cancellation to the fact that Ms. Zeng had not had an approved nomination for over 12 months and had not worked in her nominated occupation. While acknowledging the potential hardship to Ms. Zeng and her family, including difficulties returning to their home country due to COVID-19, the Tribunal noted that she had secured interim employment and had access to other government support measures. The Tribunal also considered that the applicant had not provided information regarding hardship in response to the Department's Notice of Intention to Consider Cancellation.

The Tribunal affirmed the decision of the Department to cancel Ms. Zeng's visa.