Berning (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a South African national, had been granted the visa in November 2014 to work as a landscaper. His employment with his original sponsor ceased in September 2016 when the sponsor's business closed down. The applicant subsequently found new employment and lodged a new nomination application, but received a notice of intention to cancel his visa. The review was heard by the Tribunal, with Member Amanda Mendes Da Costa presiding.

The primary legal issue before the Tribunal was whether the grounds for cancellation of the applicant's visa existed, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether the ground under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, which relates to a visa grant being based on a fact or circumstance that no longer exists. The Tribunal also had to determine whether, in light of the circumstances, the Minister's discretion to cancel the visa should be exercised.

The Tribunal was satisfied that the ground for cancellation under s 116(1)(a) of the Act was made out, as the applicant had ceased employment with his sponsor and remained in breach of his visa conditions for more than 90 days. However, this ground did not mandate cancellation. In considering the exercise of discretion, the Tribunal had regard to the applicant's long history of skilled employment in Australia since 2011, his qualifications in horticulture, and his efforts to secure new employment and maintain his migration status. Despite a misunderstanding regarding the lodgement of a new nomination application, the Tribunal concluded that the circumstances as a whole did not warrant the cancellation of the visa.

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