1512179 (Migration)

This matter concerned an application to the Tribunal to review a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with her sponsoring employer in October 2014, and by the time her visa was cancelled in August 2015, this period of unemployment had exceeded the 90 consecutive days permitted under visa condition 8107. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed breached visa condition 8107 by exceeding the permitted period of unemployment, thus establishing the ground for cancellation under section 116(1)(b). However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion. In doing so, the Tribunal had regard to relevant circumstances, including those outlined in the Department's Procedures Advice Manual. The Tribunal noted that there was no evidence of the applicant attempting to mislead the government, that her cessation of employment was due to the unavailability of the approved position, and that she had since secured a new nomination approval, enabling her to comply with her visa conditions.

Given these circumstances, and the absence of any other grounds for cancellation, the Tribunal concluded that the preferable decision was not to cancel the applicant's visa. The Tribunal also noted that the visas of secondary applicants had been cancelled by operation of law under section 140, and as no specific decision had been made to cancel those visas, the Tribunal lacked jurisdiction to review them. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant's visa, while affirming its lack of jurisdiction concerning the other applicants.