1901301 (Migration)

This matter concerned a review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a bricklayer, had been sponsored by [Company 1] (the sponsor) and was granted the visa to fill a labour shortage. The Department of Home Affairs had cancelled the visa on the ground that the applicant had ceased employment with the sponsor on 30 June 2018, thereby failing to comply with condition 8107(3)(b) of the visa, which stipulated that the period of cessation of employment must not exceed 60 consecutive days. The sponsor had notified the Department that the applicant had ceased employment and stated that all employees had refused to continue working due to the sponsor's refusal to provide cash payments, leading to the cancellation of all contracts.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8107(3)(b) of his visa and, if not, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's circumstances, including the purpose of the visa grant, the reasons for ceasing employment, and any compelling reasons for the applicant to remain in Australia, in determining whether to uphold the cancellation.

The Tribunal found that the applicant had indeed not complied with condition 8107(3)(b) as he had ceased employment for a period exceeding 60 consecutive days. However, the Tribunal then considered the exercise of discretion regarding cancellation. While acknowledging that the purpose of the applicant's stay had ended with his cessation of employment, the Tribunal also considered the applicant's submission that he was never notified of his dismissal and that the sponsor's conduct was unconscionable and beyond his control. The Tribunal noted that the applicant's wife was in Australia and employed, and their children had returned to China, but ultimately concluded that these factors, along with the applicant's lack of a compelling need to remain in Australia, did not constitute compelling reasons to retain the visa. Despite the non-compliance with the visa condition, the Tribunal, after considering all circumstances, determined that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.