Ahmed (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 457 visa was cancelled by the Minister. The applicant sought review of this decision. The Tribunal had before it documentation including the delegate's decision, a letter of offer from Kings Own Institute, an email from the applicant, and submissions from the applicant's representative.

The primary legal issue before the Tribunal was whether the ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if the holder does not comply with a condition of their visa. Specifically, the Tribunal had to determine if condition 8107(3)(b) applied to the applicant's visa and, if so, whether the applicant had breached it by ceasing employment for more than 60 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that condition 8107(3)(b) applied to the applicant's visa, a point implicitly conceded by the applicant in his submissions. The applicant had commenced employment on 17 August 2018 and ceased on 17 September 2018, a period of just over one month. However, the Tribunal accepted the applicant's evidence that he was seeking new employment and, unable to secure a sponsor within the 60-day period, commenced studies at Kings Own Institute in October 2018 with the hope of changing to a student visa. Despite the applicant's explanations regarding his employment circumstances and his subsequent efforts to find new work, the Tribunal concluded that the ground for cancellation under s 116(1)(b) was satisfied as he had ceased employment for more than 60 days. In exercising its discretion, the Tribunal considered the applicant's history, his reasons for leaving employment, and his attempts to regularise his status. Ultimately, the Tribunal determined that the visa should be cancelled.

The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 457 visa.