Brookes (Migration)

This matter concerned an application to review the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant, a national of the United Kingdom, had been granted the visa to work as a Restaurant or Café Manager. The visa was cancelled by the Department of Immigration after the applicant ceased employment with his sponsor more than 90 days prior to the cancellation decision, and a subsequent nomination application by a new sponsor was refused. The Administrative Appeals Tribunal was tasked with determining whether the cancellation decision should be set aside.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was justified, and if so, whether the discretion to cancel should be exercised. Section 116(1)(b) permits cancellation if the holder does not comply with a visa condition, specifically condition 8107, which requires that a period of cessation of employment must not exceed 90 consecutive days. The Tribunal also had to consider the exercise of discretion, taking into account various factors including the applicant's circumstances, the reasons for the cessation of employment, and the potential hardship if the visa were cancelled.

The Tribunal found that while the ground for cancellation under section 116(1)(b) was made out, as the applicant had ceased employment for more than 90 days, the cancellation was not mandatory. The Tribunal then considered the exercise of discretion. It noted that the applicant had ceased employment by mutual agreement due to concerns about business viability, and that a subsequent sporting injury had delayed his commencement in a new role. The Tribunal also acknowledged the applicant's compliance with other visa conditions and his efforts to secure new employment. Weighing these factors, including the potential difficulties in re-establishing his career in the United Kingdom after eight years in Australia, the Tribunal concluded that the circumstances did not warrant cancellation.

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