1601836 (Migration)

This matter concerned an appeal by Ms Freitas Rodrigues Dos Santos against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa by the Minister. The dispute centred on whether the grounds for cancellation existed and, if so, whether the Minister's discretion to cancel the visa should have been exercised. The decision was made by Alan Duri, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to ascertain whether Ms Freitas Rodrigues Dos Santos had complied with the conditions of her visa, specifically condition 8107(3)(b), which stipulated that the period of cessation of employment must not exceed 90 consecutive days. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that Ms Freitas Rodrigues Dos Santos had ceased employment with her sponsor on 30 January 2015 and had not returned to work with them, thereby failing to comply with condition 8107(3)(b). Consequently, the ground for cancellation under section 116(1)(b) was satisfied. In considering the exercise of discretion, the Tribunal noted Ms Freitas Rodrigues Dos Santos's long-term plan to migrate to Australia as a skilled migrant and her unhappiness in her previous role due to an all-male environment, though no harassment or underpayment was suggested. However, the Tribunal also took into account that a Subclass 457 visa is temporary, that she had spent most of her time in Australia on various temporary or bridging visas since 2011, and that she had limited ties to Australia, being single with her immediate family in Brazil.

After considering all the circumstances, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel Ms Freitas Rodrigues Dos Santos’s Subclass 457 visa.