1601361 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of a citizen of China. The applicant had been granted a Subclass 457 (Temporary Work (Skilled)) visa, which was subject to condition 8107. This condition stipulated that if the holder ceased employment, the period of unemployment must not exceed 90 consecutive days. The applicant ceased employment with her sponsoring employer on 13 February 2015 and did not resume employment with an approved sponsor until March 2016, a period exceeding 90 consecutive days.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant had complied with condition 8107 of her visa. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant did not comply with condition 8107(3)(b) as she was unemployed for a period exceeding 90 consecutive days after ceasing employment on 13 February 2015. However, the Tribunal concluded that the ground for cancellation did not mandate mandatory cancellation under section 116(3). In exercising its discretion, the Tribunal had regard to various personal circumstances of the applicant, including her educational background, her efforts to obtain qualifications and employment in Australia, and the support she received from her family. After considering all circumstances, the Tribunal decided not to exercise its power to cancel the visa.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.