1601439 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by an applicant. The dispute arose when the applicant ceased employment with their sponsoring employer, The Graviety Group Pty Ltd, and remained unemployed for a period exceeding 90 consecutive days, thereby potentially breaching a condition of their visa. The Tribunal was tasked with determining whether the grounds for visa cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had contravened condition 8107(3)(b) of their visa, which mandates that a holder must not cease employment for more than 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, including government policy and the specific facts of the applicant's situation.

The Tribunal found that the applicant had indeed ceased employment with their sponsor on or around 17 July 2015 and had not worked for the sponsor or an associated entity for a period exceeding 90 consecutive days. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was made out. In exercising its discretion, the Tribunal weighed the applicant's allegations of mistreatment and financial hardship against the purpose of the visa, which is to allow skilled workers to work temporarily in their nominated occupation. The Tribunal gave significant weight to the applicant's inability to find work in their nominated occupation for over nine months and the lack of prospects for future employment in that field.

Ultimately, the Tribunal concluded that the purpose of the visa and the applicant's prolonged inability to work in their nominated occupation were more significant factors than the alleged mistreatment by the sponsor or the resulting hardship. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s visa.