Boos (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a Senior Layout Artist, had ceased employment with his original sponsor, Animal Logic Pty Ltd, and commenced employment with a new sponsor, A.P. Facilities Ltd (trading as Deluxe Australia), but the new sponsor failed to lodge a nomination application for the applicant. The applicant argued that this non-compliance was beyond his control.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether the applicant had failed to comply with a condition of his visa by exceeding the 90-day period of ceasing employment without commencing with a new sponsor. The Tribunal also had to consider whether, if the ground for cancellation was established, the Minister should exercise the discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant had indeed breached visa condition 8107(3)(b) as he commenced employment with Deluxe approximately 45 days after ceasing employment with Animal Logic, but Deluxe never lodged a nomination application. However, the Tribunal considered the exercise of discretion regarding cancellation. It noted that Deluxe had represented to the applicant that they would sponsor him, and he provided all necessary documentation. The applicant only discovered the failure to lodge the nomination in September 2018, having worked for Deluxe since February 2018. Crucially, the Tribunal found evidence, including an email from Deluxe's former migration agent and departmental records, indicating that the applicant's nomination had been overlooked and not lodged, despite Deluxe being an approved sponsor and having lodged numerous other nominations for 457 visa holders during the relevant period. The Tribunal was satisfied that the failure to lodge the nomination was beyond the applicant's control and that it was reasonable for him to believe his sponsorship was being processed.

Given the overwhelming evidence favouring the applicant and the circumstances demonstrating that the non-compliance was not his fault, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.