1602926 (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 dispute arose from the applicant ceasing employment in a nominated occupation for more than 90 consecutive days, which constituted a breach of a visa condition. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to assess whether the applicant had complied with condition 8107 of their visa, which stipulated that they must not cease employment in a nominated occupation for more than 90 consecutive days. The evidence indicated that the applicant ceased employment on 15 September 2015 and commenced new employment in October 2015, but this new employment was not under an approved nomination. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. As this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion.

In exercising its discretion, the Tribunal had regard to various factors outlined in the Department's Procedures Advice Manual, including the purpose of the visa holder's stay, the reason for and extent of the breach, potential hardship, and Australia's international obligations. While acknowledging some confusion regarding the nomination requirements for the applicant's subsequent employment, the Tribunal noted a significant absence of evidence regarding the applicant's current employment prospects or any hardship that cancellation might cause. The Tribunal placed considerable weight on the applicant's prolonged period of unemployment in Australia since September 2015, concluding that this outweighed any hardship the applicant might experience upon return to Canada.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.