1607052 (Migration)

This matter concerned an application by Mr Wessels to review a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from Mr Wessels' cessation of employment for a period exceeding 90 consecutive days, which the delegate determined was a breach of condition 8107(3)(b) of his visa. The Administrative Appeals Tribunal, constituted by Marten Kennedy, was required to consider whether to affirm or set aside the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether Mr Wessels had complied with the conditions of his visa, specifically condition 8107(3)(b), which mandates that a holder of a Subclass 457 visa must not cease employment with their sponsoring employer for more than 90 consecutive days. If a breach was found, the Tribunal also had to consider the exercise of its discretion to either cancel or reinstate the visa, taking into account all relevant circumstances.

The Tribunal found that Mr Wessels had indeed ceased employment for a period exceeding 90 consecutive days, thereby failing to comply with condition 8107(3)(b) and consequently the overarching condition 8107. In considering the exercise of discretion, the Tribunal acknowledged Mr Wessels' stated intentions to establish a new life and business in Australia, as well as his personal hardship resulting from visa cancellation. However, the Tribunal expressed significant concern about reinstating the visa outside the established framework of the Subclass 457 visa scheme, particularly in the absence of an approved sponsoring employer or identified occupation. While an adjournment was granted to allow for clarification of a potential new employer's interest and tangible steps towards regularisation, the Tribunal ultimately placed greater weight on its concerns regarding the integrity of the visa scheme than on Mr Wessels' personal circumstances.

On balance, the Tribunal affirmed the decision to cancel Mr Wessels' Subclass 457 visa.