Aiumpalad (Migration)

This matter concerned an application to review the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Aiumpalad. The applicant had been sponsored as a Café or Restaurant Manager. The dispute arose when the applicant ceased employment with his sponsoring employer, Amarin Thai, in December 2018, as the business was being sold and effectively shut down. He then commenced employment with Fusion Thai Cuisine in January 2019, without being aware of the immigration requirement to await approval of a new nomination before commencing work with a new employer. The Tribunal reviewed the decision to cancel the 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) existed, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the Minister to cancel a visa if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8107(3)(a)(ii)(B), which required the visa holder to remain employed by their sponsor for the life of the visa. The Tribunal also considered the broader circumstances of the case in exercising its discretion regarding cancellation.

The Tribunal found that the applicant did cease employment with his approved sponsor and commenced working for another employer who was not an associated entity of the sponsor, thus establishing the ground for cancellation under section 116(1)(b). However, this ground did not mandate cancellation. In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including his long-term residence in Australia since 2013, his son's schooling, his wife's business, and his efforts to regularise his immigration status by applying for a Subclass 482 visa with a new sponsor. The Tribunal noted that the applicant had sold his home in Thailand to fund his wife's business setup costs and that he had significant ties to the Australian community.

Ultimately, the Tribunal concluded that the factors favouring not cancelling the visa outweighed those favouring cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning other applicants.