1601109 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa granted to the first applicant. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction concerning the second applicant as no decision was made regarding their visa. The dispute centred on whether the delegate's decision to cancel the first applicant's visa was justified.

The primary legal issue before the Tribunal was whether the first applicant had complied with the conditions of their visa, specifically condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The Tribunal also had to consider whether, having found a breach of this condition, it should exercise its discretion to affirm the cancellation of the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant ceased employment on 30 June 2015 and that the period of unemployment exceeded 90 consecutive days, thereby breaching condition 8107(3)(b). The Tribunal clarified that the lodgement of a new business nomination application by a prospective employer within the 90-day period did not constitute commencement of employment and therefore did not stop the running of the prescribed period. While acknowledging the applicant's efforts to find new employment and that the cessation of employment was not their fault, the Tribunal concluded that the grounds for cancellation existed. In exercising its discretion, the Tribunal considered the purpose of the visa and the applicant's circumstances, but ultimately found that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel the first named applicant’s Subclass 457 visa.