2006261 (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsoring employer for a period exceeding 60 days, which was a breach of condition 8107(3)(b) of his visa. The applicant sought to have the cancellation decision set aside, arguing that he had taken leave to care for his pregnant wife, was subsequently asked to pay a substantial sum to regain his position, and had since found other work but without a new sponsor. He also submitted that his children had integrated into Australian culture and that he had been advised he could obtain permanent residency after two years on the temporary visa.

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, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had complied with the condition requiring him to cease employment for no more than 60 days. If this condition was breached, the Tribunal then had to consider all relevant circumstances, including government policy, to decide whether to affirm the cancellation.

The Tribunal accepted the applicant's evidence regarding the circumstances of his employment cessation and the employer's demand for payment. It found that the applicant had indeed ceased employment with his sponsor for a period exceeding 60 days, thereby breaching visa condition 8107(3)(b). 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 submissions regarding his family's integration and his belief about permanent residency. However, it found that the applicant had made a personal decision to sell his possessions and that his children's young age did not constitute a compelling need to remain in Australia. The Tribunal also noted that his current employment was not in the occupation for which his 457 visa was granted.

Ultimately, the Tribunal concluded that the factors favouring cancellation outweighed those against it. Therefore, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.