1602546 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 457 visa of a national of the Philippines. The applicant had been sponsored by Simmcal Pty Ltd, but ceased employment with that company on 23 May 2015. The Department of Immigration subsequently issued a notice of intention to cancel the applicant's visa, citing a breach of visa condition 8107, which requires the holder to work only in the nominated occupation and for the sponsoring employer.

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 to exercise its discretion to cancel the visa. Condition 8107(3)(b) states that if the visa holder ceases employment, the period of cessation must not exceed 90 consecutive days. The Tribunal noted that the applicant had provided a response to the notice of intention to cancel, and that a new nomination by Robertson McMahon Pty Ltd had been lodged and subsequently approved by the Department.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out, as the applicant had ceased employment with the original sponsor. However, the Tribunal then considered its discretion regarding cancellation. It had regard to the applicant's evidence that the termination of his employment was beyond his control and that he had made efforts to secure new sponsorship within the 90-day period. The Tribunal was satisfied by evidence that Robertson McMahon Pty Ltd had a genuine need for the applicant's skills as an Automotive Electrician, an occupation listed on the Northern Territory Skilled Occupation Priority List. Given the approved nomination and the applicant's current employment with Robertson McMahon Pty Ltd, the Tribunal concluded that the applicant would now be able to fulfil the purpose of his visa and that there was a need for him to remain in Australia.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.