1609818 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The visa had been cancelled by a delegate of the Minister under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had breached visa condition 8107(3)(b) by ceasing employment for a period exceeding 90 consecutive days. The applicant had been employed as a baker by SBSM Pty Ltd, which subsequently sold its business, leading to the cessation of the applicant's employment on 10 February 2016. The applicant later found a prospective new employer, but their nomination application was withdrawn, and the applicant remained unable to secure another approved sponsor and employment.

The primary legal issue before the Tribunal was whether the ground for cancellation, namely the breach of condition 8107(3)(b), was established. If so, 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 Tribunal noted that while it could be guided by policy documents such as the Department's Procedures Advice Manual (PAM3), it was not bound by them, as judicial authority indicated these guidelines were advisory and could not override the legislation.

The Tribunal found that the applicant did indeed cease employment with the original sponsor on 10 February 2016 and that this period of unemployment exceeded 90 consecutive days, thereby establishing a breach of condition 8107(3)(b). Consequently, the ground for cancellation under section 116(1)(b) was made out. In considering the exercise of discretion, the Tribunal acknowledged the applicant's efforts to find new employment but emphasised that the Subclass 457 visa is temporary and tied to a specific sponsor. Given that the applicant had been unemployed for over 10 months and the purpose of the visa was not to facilitate an extended job search, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not doing so.

Accordingly, the Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.