De Chavez (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been employed under the labour agreement stream of the visa by Cape Australia Holdings Pty Ltd as a 'Lagger'. The Department of Home Affairs had initiated cancellation proceedings on the grounds that the applicant had ceased employment for more than 60 days, thereby breaching a condition of his visa.

The primary legal issue before the Tribunal was whether the applicant had, in fact, breached condition 8107 of his visa, which mandates that a holder cannot cease employment for more than 60 days. If this ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the applicant's employment with Cape Australia Holdings Pty Ltd had ceased in June 2018, and he had not obtained further employment with that sponsor. While the applicant argued he remained in contact with his sponsor and believed he was still employed, the Tribunal determined that being engaged by a labour hire company did not equate to being employed without a specific contract for a project. Consequently, the Tribunal was satisfied that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. However, the Tribunal then exercised its discretion not to cancel the visa. It considered the applicant's efforts to secure new employment, the fact that he had complied with other visa conditions, and the potential hardship he and his family would face if forced to leave Australia. The Tribunal also noted a new nomination application for a Subclass 482 visa had been lodged by another sponsor.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.