1609897 (Migration)

The Administrative Appeals Tribunal considered the decision to cancel Mr. Francisco's Subclass 457 visa. The dispute arose because Mr. Francisco ceased employment with his sponsoring employer, Oaten and Hoffman Ltd, on 23 February 2016, and remained unemployed for a period exceeding 90 consecutive days, which constituted a breach of condition 8107(3)(b) of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that Mr. Francisco had indeed breached condition 8107(3)(b) by ceasing employment for more than 90 days. However, the cancellation of the visa was not mandatory under section 116(3) of the Act, meaning the Tribunal had to consider the exercise of its discretion.

In considering the discretion, the Tribunal had regard to various circumstances, including the purpose of Mr. Francisco's stay, his compliance with visa conditions, the hardship that might be caused by cancellation, and the circumstances in which the ground for cancellation arose. While Mr. Francisco's prolonged period of unemployment and his failure to pursue workplace law remedies weighed in favour of cancellation, the Tribunal noted that his new sponsor, Muswellbrook Motors Pty Ltd, had their nomination application approved for him to work as a Motor Mechanic. This approval, occurring on 21 September 2016, weighed strongly in favour of not cancelling his visa.

Weighing all the circumstances, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Francisco's Subclass 457 visa.