1604130 (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose when the applicant ceased employment with their sponsoring employer, National Oilwell Pty Ltd, on 31 August 2015, and subsequently failed to secure new employment with an approved sponsor or associated entity within the prescribed period. The Tribunal affirmed the decision to cancel the visa.

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 established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the cancellation of a visa if the holder fails to comply with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which stipulated that the holder must not cease employment for more than 90 consecutive days.

The Tribunal found that the applicant had ceased working for their sponsor on 31 August 2015 and had not been working for the sponsor or an associated entity since that date. The applicant's claim of commencing work with a labour hire company in March 2016 did not satisfy the condition as the company was not an associated entity of the sponsor. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was made out. In exercising its discretion, the Tribunal acknowledged the applicant's personal circumstances, including the redundancy being outside their control and the disruption to their family's life and education if they were required to leave Australia. However, the Tribunal gave significant weight to the brevity of the applicant's full-time employment in the approved position and their inability to secure another approved nomination for over 12 months. The Tribunal concluded that the applicant, as a holder of a temporary visa, had taken a calculated risk in selling their assets to move to Australia, and this did not outweigh the failure to comply with visa conditions.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.