1604595 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant who had been granted a subclass 457 visa. The applicant's original employer, Sawarn Kaur Pty Ltd, notified the Department of Immigration that the applicant had ceased employment in July 2015. Consequently, the Department issued a Notice of Intention to Consider Cancellation, to which the applicant responded by indicating he had a new prospective employer, Makroli Pty Ltd. Despite this, the Department proceeded to cancel the applicant's visa on 31 March 2016.

The primary legal issue before the Tribunal was whether to uphold the cancellation of the applicant's subclass 457 visa, or to exercise discretion not to cancel it. This involved determining if the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 were made out, and if so, whether the circumstances warranted setting aside the cancellation decision. The applicant's agent argued that the applicant had taken steps to rectify his status by securing new employment and nomination, that the original employer's conduct contributed to the breach, and that significant hardship would befall the applicant, his pregnant wife, and his new employer if the cancellation were affirmed.

The Tribunal found that the ground for cancellation under s.116(1)(b) was indeed established, as the applicant had ceased employment with his original sponsor for more than 90 days. However, the Tribunal then considered its discretion regarding the cancellation. It gave significant weight to the fact that the applicant was still fulfilling the purpose of the subclass 457 visa by working for an approved sponsor in an approved nomination. The Tribunal also accepted evidence from the applicant's new employer, Mr Ty Simons, that the applicant's departure would disrupt the business, particularly given recruitment difficulties in regional Australia and the commencement of the busy summer season. Furthermore, the Tribunal acknowledged the compelling reasons for the applicant to remain in Australia, including his wife's advanced pregnancy and the potential hardship of re-establishing themselves in India.

Ultimately, the Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation. It therefore 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 the second applicant.