1603912 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant who had been nominated by First Fusion Pty Ltd for a Subclass 457 visa. The applicant's visa was granted on 21 January 2015. The Department of Immigration received information that the applicant ceased employment with First Fusion on 3 July 2015, leading to a notice of intention to cancel the visa on the basis of a potential breach of condition 8107, which stipulates that a visa holder must not cease employment for more than 90 consecutive days without a new approved nomination.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether the applicant had failed to comply with condition 8107 of her visa. This condition required the applicant to work only for the nominating employer and to not cease employment for more than 90 consecutive days. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation did exist, as the applicant had ceased employment for more than 90 days without a new approved nomination. However, the Tribunal then considered the exercise of discretion. The applicant provided evidence of her resignation from First Fusion due to dissatisfaction with her role and delayed salary payments, and her efforts to secure new employment. She presented evidence of subsequent nominations by Regress Pty Ltd and Global Printmart Australia Pty Ltd, detailing the reasons for their initial refusals and the eventual approval of Global Printmart's nomination on 2 May 2016. The Tribunal was satisfied that the circumstances favouring not cancelling the visa, including the applicant's efforts to find new employment and the urgent need for her skills by Global Printmart, outweighed those favouring cancellation.

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