1612826 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by an applicant who had ceased employment with her sponsor. The applicant had been granted the visa in January 2015, with the University of Western Australia as her sponsor, and was employed as a tutor. Her employment contract was extended but ultimately not renewed due to a lack of funds, leading to her ceasing employment on 1 April 2016. The applicant had been seeking alternative employment for approximately 18 months prior to the Tribunal hearing.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This section permits the cancellation of a visa if the holder fails to comply with a condition of their visa. Specifically, the Tribunal had to determine if the applicant had breached condition 8107, which requires a holder of a Subclass 457 visa to not cease employment for more than 90 consecutive days, unless in an exempted occupation. 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 indeed breached condition 8107, as she had ceased employment with her sponsor on 1 April 2016 and remained unemployed for a period exceeding 90 consecutive days. While this constituted a ground for cancellation, the Tribunal noted that mandatory cancellation was not required under section 116(3). In exercising its discretion, the Tribunal acknowledged that the applicant's visa was granted for the purpose of working for the sponsor, and that employment had ended due to the sponsor's financial constraints. It also took into account that the applicant had notified the department of her employment situation before the 90-day period expired and had otherwise complied with her visa conditions. Despite these mitigating factors, the Tribunal concluded that the breach of condition 8107 was significant and that there was no compelling need for the applicant to remain in Australia given the cessation of her sponsored employment.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.