1511156 (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision to cancel the visa of an applicant who held a Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was to determine if the applicant had failed to comply with a condition of their visa, specifically condition 8107, which requires that the period of cessation of employment does not exceed 90 consecutive days. If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had breached condition 8107, as he ceased employment with his sponsor in September or October 2013 and had not been employed in a nominated position since. The applicant acknowledged he was unaware of the condition at the time and, upon being advised, agreed he was in breach. The Tribunal noted that the applicant had ample time to make arrangements for departure or secure a new sponsor and nomination. Given that the applicant's original approved employment had ceased, and there was no current approved nomination, the Tribunal concluded that reinstating the visa would inevitably lead to a further breach of condition 8107. While acknowledging the applicant's ties to India and his financial support of his family there, the Tribunal considered that a temporary visa inherently implies a temporary stay, and departure should be anticipated.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.