DE JESUS (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsoring employer, the Echuca Hotel, in October 2017, and had not secured a new sponsor within the prescribed 90-day period, nor had he lodged a new nomination application. The Department of Home Affairs had subsequently cancelled the applicant's visa in May 2018. The applicant sought review of this cancellation decision before 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. Specifically, the Tribunal had to determine if the applicant had breached visa condition 8107, which requires a Subclass 457 visa holder to not cease employment with their nominating sponsor for more than 90 days without finding a new approved sponsor. The Tribunal also had to consider all relevant circumstances, including the applicant's claims of exploitation, family financial difficulties, and genuine attempts to find new employment, in deciding whether to affirm the cancellation.

The Tribunal found that the applicant had indeed breached visa condition 8107 by ceasing employment for a period exceeding 90 days without securing a new sponsor. While acknowledging the applicant's stated hardships and genuine attempts to find alternative sponsorship, the Tribunal noted that the applicant had been granted extensions of time by both the Department and the Tribunal itself. Ultimately, the Tribunal concluded that the applicant had been afforded more than a reasonable period to find a new sponsor and that his purpose of stay in Australia, which required him to be employed by an approved sponsor in a nominated occupation, was not being met. After weighing all discretionary factors, the Tribunal determined that the cancellation of the visa was warranted.

The Tribunal affirmed the decision of the Department of Home Affairs to cancel the applicant's Subclass 457 visa.