1611501 (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant ceased employment with their sponsoring employer, AV Foods Pty Ltd, on 6 November 2015, and had not been working for that sponsor or an associated entity for a period exceeding 90 consecutive days, which was a condition of their visa. The decision to cancel the visa was made by the Minister, and the review was heard by the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was made out, specifically whether the applicant had complied with condition 8107 of their visa. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) by ceasing employment for more than 90 consecutive days without working for the original sponsor or an associated entity. However, the Tribunal noted that this ground did not mandate cancellation under section 116(3). In exercising its discretion, the Tribunal considered the applicant's experience, references, and the fact that a new sponsor, NS Beverages Pty Ltd, had offered to sponsor the applicant in the same occupation, declaring an inability to find an Australian worker. The Tribunal also gave weight to the circumstances leading to the breach being beyond the applicant's control and the absence of any other adverse information. Consequently, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.