CHALISSERY (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant had ceased employment with his approved sponsor for a period exceeding 60 consecutive days, thereby breaching a condition of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the decision to cancel the visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107(3)(b) of his visa, which mandates that the holder must not cease employment for 60 days or more. If this breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy and the applicant's submissions. The Tribunal also considered whether the applicant had taken steps to secure new employment with an approved sponsor or apply for an alternative visa following the cessation of his original employment.

The Tribunal found that the applicant had ceased employment on 6 July 2018 and had not worked for an approved sponsor for a period exceeding 60 days, nor had he secured new employment with an approved sponsor by the date of the decision, which amounted to 677 days. This established a clear breach of condition 8107(3)(b), satisfying the ground for cancellation under s.116(1)(b) of the Migration Act 1958. While the breach did not mandate cancellation under s.116(3), the Tribunal considered the applicant's circumstances, including his expressed wish to apply for a Subclass 190 visa and a job offer from a new employer. However, the Tribunal noted that no application for the Subclass 190 visa was successfully lodged, and there was no evidence that the new employer had lodged a visa nomination.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa, concluding that, in light of the prolonged breach of visa conditions and the lack of evidence of successful steps to regularise his immigration status, the cancellation was warranted.