1836768 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The dispute arose because the applicant had ceased employment with her sponsoring employer and was allegedly not working in the nominated occupation of Restaurant Manager, thereby failing to comply with Condition 8107 of her visa. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether the decision to cancel the visa should be affirmed.

The Tribunal was required to determine if the applicant had complied with Condition 8107, which mandates that a visa holder work only in the occupation specified in the most recently approved nomination. This involved assessing whether the applicant was indeed working as a Restaurant Manager, as nominated, or in other occupations. Furthermore, the Tribunal had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised, taking into account various factors including the purpose of the visa, the applicant's compliance history, and the potential hardship caused by cancellation.

The Tribunal found that the applicant had not complied with Condition 8107 because she had ceased employment with her sponsor and was not working in the nominated occupation of Restaurant Manager. Evidence indicated that the applicant's role with the sponsor did not fully align with the typical duties of a Restaurant Manager as defined by ANZSCO, and she had not commenced employment until some time after her arrival. In exercising its discretion, the Tribunal noted that the applicant's original purpose for entering Australia – to work as a Restaurant Manager – no longer existed as she was unemployed and caring for her daughter. While her compliance with other visa conditions and her timely response to departmental requests weighed against cancellation, the Tribunal concluded that the failure to work in the nominated occupation was a significant factor.

Ultimately, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa, finding that the grounds for cancellation were established and that the exercise of discretion favoured cancellation in these circumstances. The Tribunal noted it had no jurisdiction concerning other applicants.