1603301 (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The applicant had been granted the visa in October 2012, sponsored by Daiso Japan (Australia) Pty Ltd. Information received by the Department of Immigration indicated that the applicant ceased employment with the sponsor on 31 July 2015. Consequently, a Notice of Intention to Consider Cancellation was issued, citing a breach of visa condition 8107, which requires the visa holder to remain employed by the sponsoring employer or secure a new approved nomination within 90 days.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed and, if so, whether the discretion to cancel the visa should be exercised. The applicant's former representative argued that the ground for cancellation did not exist, attributing the delay in securing a new sponsor to the Department's processing times. The applicant had sought to change employers and lodged nominations with a new sponsor, E.Tel Communications Pty Ltd, but these nominations were refused.

The Tribunal found that the applicant had indeed breached condition 8107 by ceasing employment with the original sponsor and failing to secure an approved nomination within the prescribed period. While the applicant had made efforts to find new employment, the proposed new sponsor's nominations were twice refused, and a third application was pending. The Tribunal concluded that the purpose of the applicant's Subclass 457 visa no longer existed, as there was no current approved nomination. The Tribunal also considered the exercise of discretion, noting that the applicant had not worked in an approved nominated position for almost a year and would be unable to meet the requirements of a Subclass 457 visa even if it were not cancelled. The Tribunal found that while cancellation would cause some hardship, it was not serious, and the reasons for cancellation outweighed the reasons for not cancelling. The Tribunal affirmed the cancellation of the visa.