Bhargava (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant ceased employment with his approved sponsor, Sharma Enterprises LP, on 17 May 2016, and this cessation exceeded the 90 consecutive days permitted by visa condition 8107(3)(b). Furthermore, the applicant failed to notify the Department of Home Affairs of this cessation of employment.

The Tribunal was required to determine 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. The specific legal issue was whether the applicant had complied with the conditions of his visa, particularly the requirement to not cease employment with his sponsor for more than 90 consecutive days and the obligation to notify the Department of such cessation.

The Tribunal found that the applicant had indeed ceased employment with his sponsor for a period exceeding 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal had regard to the applicant's lengthy period of residence in Australia since 2009, his marriage to an Australian resident, and his unsuccessful attempts to find a new sponsor for nearly two years. However, the Tribunal weighed these factors against the applicant's admitted awareness of visa condition 8107 and his failure to notify the Department of his employment cessation. The Tribunal considered the applicant's prolonged inability to secure a new sponsor to be contrary to the purpose of the Subclass 457 visa scheme and a significant factor favouring cancellation.

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