Ancheta (Migration)

This matter concerned an appeal by the applicant against the cancellation of their Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose because the applicant had been unemployed for a period exceeding 90 days following the termination of their employment with their initial sponsor due to redundancy. Although the applicant secured an offer of employment with a second company, this company did not have an approved sponsorship agreement. The Administrative Appeals Tribunal was tasked with determining whether the cancellation decision was appropriate.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been made out, specifically concerning the applicant's non-compliance with visa condition 8107. This condition mandates that a visa holder must work only in the occupation specified in their most recently approved nomination and stipulates that any period of unemployment must not exceed 90 consecutive days. The Tribunal also had to consider whether, even if a ground for cancellation existed, the power to cancel the visa should be exercised as a matter of discretion, taking into account all relevant circumstances and government policy.

The Tribunal found that the applicant had indeed remained unemployed for more than 90 consecutive days after ceasing employment with their original sponsor, Aluglass Australia Pty Ltd, due to redundancy. This fact was conceded by the applicant. However, the Tribunal noted that cancellation under section 116(1)(b) is not mandatory. It then proceeded to consider the discretionary power to cancel the visa. The Tribunal concluded that, having regard to all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.