1514849 (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms Kung's Subclass 457 visa. The Minister had the power to cancel the visa under section 116 of the Migration Act 1958 if satisfied that the visa holder had not complied with a condition of their visa. The specific condition in question was condition 8107(3) of the Migration Regulations 1994, which required Ms Kung to work only in the occupation listed in her most recently approved nomination and only for her sponsor or an associated entity, and to not cease employment for more than 90 consecutive days.

The Tribunal was required to determine whether Ms Kung had breached visa condition 8107(3) by ceasing employment with her original sponsor, Sichuan Cuisine Pty Ltd, and commencing employment with a new sponsor, Bakers Delight Gordon, before her nomination with the new sponsor was approved. The Tribunal also had to consider whether, if a breach occurred, it should exercise its discretion not to cancel the visa.

The Tribunal found that Ms Kung had breached condition 8107(3)(a) by working for Bakers Delight Gordon for over nine months before her nomination with that employer was approved. However, the Tribunal determined that Ms Kung had not breached condition 8107(3)(b) as she had not ceased employment for more than 90 consecutive days. In considering the exercise of its discretion, the Tribunal had regard to the purpose of the Subclass 457 visa program and Ms Kung's efforts to secure new employment immediately after her previous employment ended, as well as the advice she received from her migration agent.

Ultimately, the Tribunal concluded that the evidence favouring not cancelling Ms Kung's visa outweighed the evidence favouring cancellation. Therefore, the Tribunal set aside the decision to cancel Ms Kung's visa and substituted a decision not to cancel it.