1614463 (Migration)

This matter concerned an application to affirm the cancellation of the applicant's visa, heard by Carolyn Wilson. The dispute arose from the Minister's decision to cancel the applicant's Subclass 457 visa under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder fails to comply with a visa condition. The applicant had been sponsored by Duffy and Mcgowan Construction Pty Ltd as a carpenter, but this employer went into administration and was wound up, leading to the applicant ceasing employment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) was made out, specifically whether the applicant had complied with condition 8107(3) of their visa. This condition mandates that the holder must work only in the nominated occupation and for the sponsoring employer, and that cessation of employment must not exceed 90 consecutive days. The Tribunal also 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 ceased employment with the sponsor for a period exceeding 90 days, thereby satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal noted that the applicant had not worked for a standard business sponsor since January 2016. While the applicant presented a new nomination application with ADC Constructions Pty Ltd, this was subsequently refused, and the Tribunal raised concerns about the applicant and their representative potentially providing false and misleading information. Despite a further nomination application with Monford Group Pty Ltd being lodged, the Tribunal gave significant weight to the prolonged period the applicant had been without an approved nomination and expressed concerns about the genuineness of this latest application, ultimately affirming the decision to cancel the visa.