Brookes (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a national of the United Kingdom, had ceased employment with his sponsor for over 90 days, which constituted a ground for cancellation under section 116(1) of the Migration Act 1958 (Cth). The applicant had subsequently experienced further employment cessation and faced significant challenges in the hospitality industry due to the COVID-19 pandemic. The decision under review was made by the Administrative Appeals Tribunal, with Member Amanda Mendes Da Costa presiding.

The primary legal issue before the Tribunal was whether, having established a ground for cancellation under section 116(1) of the Migration Act, the Tribunal should exercise its discretion to cancel the applicant's visa. This required the Tribunal to consider various factors, including the purpose of the applicant's stay in Australia, his compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that the applicant had invested considerable time and effort in establishing his life and career in Australia over approximately ten years, and that his Subclass 457 visa was due to expire shortly. It accepted that cancellation would likely cause the applicant emotional and financial hardship, particularly given his desire for permanent residency and his established life in Australia. However, the Tribunal gave significant weight to the fact that the fundamental purpose of the Subclass 457 visa – to enable an Australian business to sponsor a skilled worker – was no longer being met, as the applicant had ceased employment with his sponsor in November 2019. While noting no other instances of non-compliance with visa conditions, the Tribunal concluded that, on balance, the circumstances warranted the cancellation of the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.