1804767 (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by an applicant who had ceased employment with their sponsoring employer. The dispute arose when the Department of Home Affairs initiated cancellation proceedings, alleging a breach of visa conditions related to employment. The applicant sought review of this decision before the AAT.

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, specifically concerning the applicant's compliance with condition 8107(3)(b) of their visa. This condition requires that if a visa holder ceases employment, the period of cessation must not exceed 90 consecutive days without an approved nomination from a new employer. 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 sponsoring employer in July 2017, and the Department issued notices of intention to consider cancellation on this basis. The applicant provided a response, including a letter indicating cessation of employment and an employment agreement with a new employer. However, the Tribunal noted a lack of contemporary evidence to support the applicant's claims regarding the reasons for cessation (pay dispute and sexual harassment), including the absence of a police report or details of any legal proceedings. Furthermore, there was no evidence that the applicant commenced employment with the new employer or that a new nomination had been approved. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was made out.

In exercising its discretion, the Tribunal considered the applicant's claims of a pay dispute and sexual harassment, and the psychological impact thereof, as evidenced by a psychologist's report based on self-reporting. However, given the lack of corroborating evidence and the absence of any approved nomination from a new employer, the Tribunal concluded that the circumstances warranted the affirmation of the cancellation decision. The Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.