1604394 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 457 visa of an applicant nominated by Pawon Pty Ltd, trading as Hilands Coffee Food Beverage Wholesale. The Department of Immigration received information that the applicant had ceased employment with the former sponsor and subsequently issued notices of intention to cancel the visa. The applicant's representative argued that a new employer, South Pacific Food Distributors Pty Ltd, had applied for sponsorship and lodged a nomination, and that delays were due to the sponsor's unfamiliarity with the process. Despite the applicant conceding he had ceased employment for more than 90 days, the Tribunal was asked to consider whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's Subclass 457 visa, given that a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. This section permits the Minister to cancel a visa if satisfied that certain grounds are met, including the visa holder ceasing employment with the sponsoring employer for more than 90 days. The Tribunal was required to consider all relevant circumstances, including government policy and the specific facts of the applicant's situation, to determine if cancellation was warranted.

The Tribunal reasoned that while the applicant had breached the condition of his visa by ceasing employment for over 90 days without securing a new nomination within that timeframe, the cancellation was not mandatory. In exercising its discretion, the Tribunal had regard to the applicant's reasons for leaving his former employer, accepting that he was new to Australia and unaware of his rights, although noting he should have made himself more aware. Crucially, the Tribunal found that the delay in securing a new nomination was due to the new sponsor's lack of understanding of the process. The Tribunal was satisfied that the applicant had a compelling need to remain in Australia as he had secured new employment with an approved sponsor, South Pacific Food Distributors Pty Ltd, who had an approved nomination in place. This ability to fulfil the purpose of the visa weighed strongly in favour of not cancelling it.

The Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning other applicants.