1607954 (Migration)

This matter concerned an appeal to the tribunal by a Japanese national regarding the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted in June 2013 and was due to expire in June 2017. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which stipulates that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The applicant had resigned from his sponsoring employer, The Pantry Family Trust, on 27 November 2015, and the delegate subsequently issued a notice of intention to cancel the visa, leading to its cancellation on 26 May 2016.

The primary legal issue before the tribunal was whether the ground for cancellation, specifically the breach of condition 8107(3)(b), was established. If this ground was made out, the tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The applicant had also sought to secure new employment and had applied for a business nomination with a new employer, Oka Group Pty Ltd, which was refused in May 2016.

The tribunal found that the applicant had indeed ceased employment with The Pantry Family Trust on 27 November 2015 and that the period of unemployment exceeded 90 consecutive days, thereby establishing a breach of condition 8107(3)(b). In considering the exercise of discretion, the tribunal acknowledged that while departmental policy guidelines, such as those in PAM3, could provide a useful starting point, they were not legally binding. The tribunal noted that the applicant's purpose for being in Australia was temporary work as a sushi chef, and the Subclass 457 visa was not intended for indefinite job searching. Despite the applicant's attempts to find new employment, the tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.