1602723 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who held a Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was granted on the basis of a nomination for the position of Marketing Specialist with Eva Collections Pty Ltd. The Department was notified that the applicant had ceased employment with this sponsor.

The primary legal issue before the Tribunal was 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. Section 116(1)(b) permits cancellation if the visa holder has failed to comply with a condition of their visa. Condition 8107, attached to the applicant's visa, required the holder to work in the nominated occupation and stipulated that cessation of employment must not exceed 90 consecutive days.

The Tribunal found that the applicant had ceased employment with his original sponsor in December 2014 and had not returned to work for them since, thus breaching condition 8107 by exceeding the 90-day limit. However, the Tribunal then considered the exercise of discretion. It noted that the cessation of employment was due to circumstances outside the applicant's control, specifically regulatory issues affecting his sponsor's business. The applicant had actively sought new employment and secured an approved nomination with a new sponsor, G J Food & Services Pty Ltd, for the occupation of Wholesaler. The Tribunal gave significant weight to the applicant's efforts to secure new sponsorship and found that the breach was a result of unforeseen events. Considering all circumstances, including the hardship to the applicant and the disadvantage to the new sponsor if the visa were cancelled, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel it.