1818362 (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had been sponsored by [Business 1], trading as [Café 1], for the occupation of Cook. The visa was granted subject to condition 8107, which requires that a visa holder must not cease employment for more than 90 consecutive days. The Department of Immigration and Border Protection (now the Department of Home Affairs) issued a Notice of Intention to Consider Cancellation, indicating that the nominated business was not operating and had changed its signage. The applicant responded to this notice, but the Tribunal ultimately affirmed the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached visa condition 8107, thereby providing a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to determine if the applicant had ceased employment for more than 90 consecutive days and, if so, whether the visa should be cancelled, considering all relevant circumstances. The Tribunal also considered the procedural requirements for cancellation, including the provision of adequate notice and an opportunity for the applicant to respond.

The Tribunal found that the evidence, including the Department's visits to the nominated business premises and the change in signage, established that the applicant had likely ceased employment with the sponsoring employer for a period exceeding 90 consecutive days. The Tribunal noted that the onus of establishing the facts leading to cancellation rests with the Minister, or on review, with the Tribunal, and that the applicant was invited to show cause why the visa should not be cancelled. While acknowledging that the applicant had lived in Australia since 2011, had completed commercial cookery qualifications, and had family members in Australia, the Tribunal concluded that these circumstances did not outweigh the substantial non-compliance with the visa conditions. The Tribunal affirmed the decision to cancel the applicant's visa.