1513084 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, who held a Subclass 457 (Temporary Work (Skilled)) visa. The Minister had the power to cancel the visa under section 116 of the Migration Act 1958 (Cth) if satisfied that certain grounds were met. The dispute centred on whether the applicant had complied with the conditions attached to her visa, specifically condition 8107.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(b) of the Act existed, which relates to the holder not complying with a visa condition. Specifically, the Tribunal had to assess whether the applicant had breached condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. If this ground 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 indeed failed to comply with condition 8107(3)(b) as she ceased employment and did not secure new employment within the prescribed 90-day period. However, the Tribunal determined that this ground did not mandate cancellation under section 116(3). In exercising its discretion, the Tribunal considered the applicant's stated purpose for coming to Australia, her efforts to find alternative employment, and the circumstances surrounding the cessation of her previous employment. The Tribunal accepted that the applicant's employer ceased operating, leading to the breach of the visa condition through no fault of her own, and that the breach was not significant.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.