1901921 (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The dispute arose when the applicant's sponsor notified the Department that the applicant had ceased employment, potentially breaching a visa condition. The applicant argued that he was not formally dismissed, was unaware of his employment status, and that his former sponsor's conduct was unconscionable.

The Tribunal was required to determine whether the applicant had breached condition 8107(3)(b) of his visa, which mandates that a holder must not cease employment for more than 90 consecutive days. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the purpose of the visa grant, the applicant's current employment status, and any hardship that cancellation might cause.

The Tribunal found that the applicant had indeed failed to comply with condition 8107(3)(b) as he had ceased employment for longer than 90 days. However, in exercising its discretion regarding cancellation, the Tribunal placed significant weight on the applicant's evidence that he was never formally notified of his dismissal and that his former sponsor's communication methods made it difficult to ascertain his employment status. The Tribunal accepted that the applicant was unaware of his dismissal and had waited out of loyalty for further work. While acknowledging the purpose of the visa was to fill a labour shortage, the Tribunal was persuaded by the circumstances surrounding the breach and the applicant's current employment and family situation in Australia.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa, substituting a decision not to cancel. The Tribunal noted it had no jurisdiction concerning the second and third named applicants.