Adil (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsoring employer, Noddle Hut Halal Pty Ltd, on 20 August 2015, when the business was sold. The applicant's visa was subsequently cancelled by the Department of Immigration and Border Protection on 18 January 2016. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached a condition of his visa, specifically condition 8107(3)(b), which requires that a visa holder must not cease employment for more than 90 consecutive days. If a breach was found, the Tribunal then had to determine whether to exercise its discretion to set aside the cancellation decision. The Tribunal also considered the applicant's submissions regarding his purpose for staying in Australia and his efforts to secure new employment and sponsorship.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he conceded ceasing employment for more than 90 consecutive days. The Tribunal noted that the applicant's nominated occupation was not a specified occupation for the purposes of paragraph 8107(3A). While the applicant had sought to secure a new sponsor and nomination, this nomination was refused and remained unapproved at the time of the Tribunal hearing. The Tribunal considered the applicant's stated purpose for his stay, which was to work in a nominated occupation, and concluded that this purpose was no longer viable given the prolonged period without an approved nomination. The Tribunal also considered the applicant's requests for further delays in the decision-making process, but ultimately found that sufficient time had already been granted and that the applicant had not provided evidence of an approved nomination.

The Tribunal was not persuaded that it should exercise its discretion not to cancel the visa. It concluded that the breach of condition 8107(3)(b) was established and that the matters raised by the applicant were not sufficient, individually or cumulatively, to warrant setting aside the cancellation decision. Accordingly, the Tribunal affirmed the decision to cancel the applicant's visa.