1604506 (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 Minister had the power to cancel the visa under section 116 of the Migration Act 1958 (Cth) if satisfied that certain grounds were met. The applicant's visa was subject to condition 8107, which required the visa holder to work only in their nominated occupation and within the business of the sponsor or an associated entity, and stipulated that cessation of employment must not exceed 90 consecutive days.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(b) of the Act were made out, specifically whether the applicant had failed to comply with condition 8107 of their visa. This involved assessing whether the applicant had ceased employment for more than 90 consecutive days and whether they had worked only in their nominated occupation (formworker) and for their sponsoring employer or an associated entity. If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had ceased employment with the sponsoring employer on 11 May 2015. While the applicant claimed not to have been unemployed for 90 consecutive days, the Tribunal was more concerned with the applicant's evidence that he was primarily asked to perform demolition work, rather than his nominated occupation of formworker, and that he was instructed to leave by his employer when he raised this issue. The Tribunal accepted that the applicant's purpose for coming to Australia was to work as a formworker and that he had sought to continue in this occupation. Despite concerns about the applicant's failure to notify the Department of his cessation of employment and his apparent lack of understanding of his visa obligations, the Tribunal concluded that the circumstances as a whole did not warrant visa cancellation. The Tribunal noted the hardship cancellation would cause, including the need to return to Lebanon and re-establish his business, and the impact on his family.

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