Ascott (Migration)

The Administrative Appeals Tribunal considered a case involving a visa cancellation. The applicant, a citizen of the United Kingdom, held a Subclass 457 (Temporary Work (Skilled)) visa sponsored by his employer, HRX Pty Ltd. The dispute arose when the applicant ceased working for his nominated employer and failed to commence employment in a new nominated position within the prescribed 90-day period, thereby breaching a condition of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107 of his Subclass 457 visa, which required him to work only in his nominated occupation and position, and to commence employment within 90 days of arrival and not remain unemployed for more than 90 consecutive days. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the purpose of the applicant's stay, the hardship caused by cancellation, and any other pertinent matters.

The Tribunal found that the applicant had indeed breached condition 8107 by ceasing employment with HRX Pty Ltd on 24 October 2014 and remaining unemployed in his nominated occupation until his visa was cancelled in February 2018. While acknowledging the applicant's personal circumstances, including the breakdown of his marriage and his co-parenting arrangements with his Australian citizen children, the Tribunal noted that the prolonged failure to secure new sponsorship was not adequately explained. However, the Tribunal ultimately concluded that the visa should not be cancelled.

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