De Oliveira Junior (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)), held by Mr. De Oliveira Junior. The dispute arose after the Department of Home Affairs initiated cancellation proceedings under section 116 of the Migration Act 1958 (Cth) due to the applicant ceasing employment with his sponsor for more than 90 consecutive days. The applicant contended that his resignation was due to bullying, underpayment, and work-related stress and depression, and that he was unable to secure new sponsorship.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was established, and if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. Specifically, the Tribunal had to assess the applicant's claims regarding the reasons for ceasing employment, his efforts to secure new sponsorship, the purpose of his Subclass 457 visa, and the degree of hardship that cancellation might cause.

The Tribunal found that the applicant had indeed ceased employment with his sponsor for more than 90 consecutive days, thus establishing the ground for cancellation. While acknowledging the applicant's submissions regarding bullying, underpayment, and resulting depression, the Tribunal noted that the applicant did not respond to a subsequent invitation to provide further information regarding the exercise of discretion. The Tribunal accepted that the applicant's intention was to work in skilled employment in Australia, but found it significant that there was no evidence of current skilled employment with an approved sponsor, which is the purpose of a Subclass 457 visa. Although the applicant's wife wished to continue her studies, the Tribunal concluded that this was a secondary purpose and not a compelling reason for the applicant to remain in Australia.

Ultimately, the Tribunal affirmed the decision to cancel Mr. De Oliveira Junior's Subclass 457 visa, finding that the circumstances as a whole did not warrant the exercise of discretion against cancellation. The Tribunal noted it had no jurisdiction concerning a second applicant.