2014038 (Migration)

This matter concerned an application for review of a decision by the Department of Immigration and Border Protection to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who arrived in Australia in 2017 from Iraq with his wife and two youngest children, had been sponsored by [Company 1] to work as an [Occupation 1]. The sponsor notified the Department that the applicant ceased employment on 6 March 2020. The applicant claimed he was actively seeking new employment and had signed an employment contract with a different employer after the review hearing, but no evidence of new sponsorship or a visa application was provided to the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with the conditions of his visa, specifically paragraph 8107(3)(b), which requires that cessation of employment must not exceed 60 days. The Tribunal was also required to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, having regard to the circumstances of the case and relevant departmental guidelines. The Tribunal noted that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) did not mandate cancellation.

The Tribunal found that the applicant had not complied with the 60-day employment cessation requirement, thus satisfying a ground for cancellation under section 116(1)(b). In considering its discretion, the Tribunal weighed various factors, including the applicant's family ties in Australia, with his eldest child living permanently in Australia and his second child married to an Australian and planning to live permanently in Australia. The applicant also owned property in Iraq and had made several visits to his home country for business affairs. The Tribunal acknowledged the applicant's claims of actively seeking work and the potential impact of COVID-19 restrictions, but noted the lack of evidence of a new sponsoring employer or a visa application.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal was not satisfied that the applicant had provided sufficient evidence to warrant the exercise of discretion in his favour, particularly concerning his continued compliance with visa conditions and the purpose of his stay in Australia.