1602229 (Migration)

This matter concerned an application to review the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa. The applicant sought to have the decision to cancel his visa set aside. The Tribunal was required to consider whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8107 of his visa, which stipulated that he must not cease employment for 90 consecutive days. The delegate's decision to cancel the visa was based on advice from the applicant's employer that he had ceased employment on 21 September 2015. The Tribunal had to determine if this ground for cancellation was established.

The Tribunal found that the evidence presented by the Department was insufficient to establish the ground for cancellation. Specifically, a copy of the employer's advice was not provided to the Tribunal, preventing it from independently verifying the information. In contrast, the applicant provided a letter from his employer stating he was employed until 21 February 2016, the date of the visa cancellation, along with payslips supporting this claim. Consequently, the Tribunal was not satisfied that the applicant had ceased employment as alleged, and therefore, the ground for cancellation under section 116(1)(b) was not made out. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning a second applicant.