1610964 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who held a Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant had complied with condition 8107 of their visa, specifically subclause 8107(3)(b), which stipulates that if a holder ceases employment, the period of cessation must not exceed 90 consecutive days. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had not complied with condition 8107(3)(b) as they had ceased employment with their sponsoring employer for more than 90 consecutive days. However, in exercising its discretion, the Tribunal gave weight to the circumstances surrounding the termination of the applicant's employment, noting it was consistent with publicly available information regarding investigations into the practices of the former employer. Furthermore, the Tribunal accepted evidence that a new employer was willing to lodge a nomination under the Subclass 457 visa program, which weighed in favour of not cancelling the visa.

Ultimately, the Tribunal concluded that the factors favouring cancellation were outweighed by those favouring non-cancellation. Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.