Arefin (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a citizen of Bangladesh, had been granted the visa on 27 September 2013, nominated by ANT Holdings Pty Ltd for the occupation of Customer Service Manager. The Department issued a notice of intention to cancel the visa, citing that the applicant's employment with ANT Holdings Pty Ltd ceased on 26 April 2016, and that the period of cessation appeared to exceed 90 consecutive days, thereby breaching visa condition 8107(3)(b). The sponsorship approval of ANT Holdings Pty Ltd was also cancelled on 26 April 2016, and the company was barred from future applications for five years.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with visa condition 8107(3), which requires the holder to work only for the approved sponsor and not cease employment for more than 90 consecutive days, unless specific exceptions applied. The Tribunal also considered the applicant's subsequent attempts to secure new sponsorship and nominations, and whether these efforts demonstrated an intention to comply with the purpose of the 457 visa.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out, as the applicant had ceased employment with the approved sponsor for a period exceeding 90 consecutive days. The Tribunal noted that the applicant's subsequent actions, including lodging a new nomination application with Grazing By restaurant, occurred after the delegate's decision to cancel the visa and did not negate the initial breach. While acknowledging the applicant's stated preference for the new location and the efforts to obtain a nomination, the Tribunal concluded that the applicant was still not the subject of a current approved nomination at the time of the decision, and therefore could not fulfil the purpose of the 457 visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to a second applicant.