Abujen (Migration)

This matter concerned an application by Abujen (the applicant) to review the decision of the Minister to cancel his subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased sponsored employment with Ocean Shores more than 90 days prior, and the sponsoring business had ceased operation. A subsequent nomination application for new employment was refused, and issues had arisen with the applicant's migration agent.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether the applicant had breached condition 8107(3)(b) of his visa, which required him not to cease employment with his nominated employer for more than 90 consecutive days.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he ceased employment with Ocean Shores in late August 2015 and remained unemployed for more than 90 consecutive days. Accordingly, the Tribunal was satisfied that lawful grounds for cancellation existed. However, the Tribunal then considered the exercise of discretion, noting that cancellation was not mandatory. Having regard to all the circumstances, including the applicant's involuntary cessation of employment due to the business downturn and the issues with his migration agent, the Tribunal concluded that the correct and preferable exercise of its discretion favoured setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s subclass 457 visa.