Clegg (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Clegg. The dispute arose when the applicant ceased employment with his sponsoring company, Hse Mining Pty Ltd, and subsequently exceeded the 90-day period permitted for unemployment under visa condition 8107(3)(b). The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out. This required an assessment of whether the applicant had complied with the conditions of his visa, specifically condition 8107(3)(b), which mandates that the period of cessation of employment must not exceed 90 consecutive days. The Tribunal found that the applicant had indeed ceased employment and exceeded this period. However, the Tribunal noted that this ground did not mandate cancellation under s.116(3) of the Act, allowing for the exercise of discretion.

In exercising its discretion, the Tribunal considered the circumstances of the case, including the applicant's stated intention to make Australia his home, his integration into Australian life, and the difficulties he faced in securing permanent residency due to changes in skilled occupation lists. The Tribunal also took into account the applicant's proactive efforts to find new employment, evidenced by an offer of permanent employment with Austal and a casual employment contract with Turner & Townsend. The Tribunal accepted that economic downturn contributed to the difficulty in securing employment and concluded that the applicant had complied with the purpose of his travel and stay in Australia to the extent possible.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.