1602075 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who was employed as an electrician. The dispute arose because the applicant's visa was subject to a condition requiring them to work only in their nominated occupation and to not cease employment for more than 90 consecutive days. The applicant ceased employment when their sponsoring business closed down, and this period exceeded 90 days, leading to the cancellation of their visa.

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, and if so, whether the discretion to cancel the visa should be exercised. The applicant argued that the cessation of employment was due to circumstances beyond their control, namely the closure of their sponsoring employer's business.

The Tribunal found that the applicant had indeed breached visa condition 8107 by exceeding the 90-day period of unemployment. However, in considering the exercise of discretion, the Tribunal took into account that the business closure was beyond the applicant's control. The Tribunal accepted the applicant's evidence that they had actively sought new employment and had undertaken steps to improve their employability, including obtaining a Queensland Electrical licence and a positive skills assessment. Despite initial difficulties in finding a new sponsor due to a downturn in the mining industry, the applicant had secured a new nomination, which was being processed with priority. Given these circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision to cancel the applicant's Subclass 457 visa.