1512123 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 457 (Temporary Work (Skilled)) visa was cancelled. The applicant had been sponsored by Sun & Yao Construction Pty Ltd for the occupation of Civil Engineering Technician. The cancellation of the applicant's visa was triggered by the cancellation of the employer's sponsorship agreement and the applicant's subsequent cessation of employment with that company, which allegedly occurred more than 90 days prior to the notice of intention to cancel.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's visa should be set aside. This involved determining if 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 in the applicant's favour. The applicant contended that he did not cease employment on the date alleged and that he was instructed by his sponsoring employer to perform work as a tiler, rather than in his nominated occupation.

The Tribunal found that while a ground for cancellation existed, the exercise of discretion was paramount. It accepted the applicant's evidence that he was directed by his employer to work as a tiler, acknowledging that the sponsoring employer had breached its obligations. However, the Tribunal also noted the applicant's responsibility to comply with his visa conditions. Crucially, the Tribunal gave significant weight to evidence presented after the hearing, which indicated that the applicant had secured a new, approved nomination for the occupation of Wall and Floor Tiler. This development meant the applicant could now fulfil the purpose of his 457 visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. It concluded that, in light of the approved nomination and the potential hardship to the applicant's family, particularly his children, the discretion to cancel the visa should not be exercised. The Tribunal substituted a decision not to cancel the visa.