David (Migration)

This matter concerned an appeal by the applicant, David, against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from the applicant's failure to comply with a condition of his visa, which stipulated that any period of unemployment must not exceed 90 consecutive days. The applicant had been unemployed for an extensive period, leading to the automatic cancellation of his visa. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the cancellation of a visa if the holder fails to comply with a condition of their visa. In this case, the specific condition in question was 8107(3)(b), which mandates that a period of unemployment must not exceed 90 consecutive days.

The Tribunal found that the applicant had indeed ceased employment and that this period of unemployment had exceeded 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). Although the cancellation was not mandatory under section 116(3), the Tribunal proceeded to consider the exercise of its discretion. In doing so, it had regard to the applicant's oral evidence, the Department's file, and submissions. The applicant explained that his previous sponsor's business had closed, and despite efforts to find new employment and sponsorship, he had been unsuccessful since July 2016. He expressed a strong desire to remain in Australia with his family, citing concerns about his father's health and potential difficulties if he returned to the Philippines, including issues with his ex-wife's family and drug-related problems.

After considering all the circumstances, the Tribunal concluded that the visa should be cancelled and affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.