Declan (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Declan. The dispute arose because the Department of Home Affairs was notified by the applicant's sponsor, GS Mobile, that the applicant had not commenced employment with them within 90 days of the visa grant, which was a condition of the visa.

The Tribunal was required to determine whether the ground for cancellation existed, specifically whether the applicant had failed to comply with Condition 8107(3)(aa)(ii) of his visa by not commencing employment with GS Mobile within the prescribed timeframe. If the 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 acknowledged that the applicant claimed to have commenced two weeks of training with GS Mobile and received cash payments, but found there was no verifiable evidence to support this claim. Consequently, the Tribunal was satisfied that the ground for cancellation, namely non-compliance with a visa condition, was made out. However, the Tribunal then considered the discretionary aspects of cancellation. It noted the applicant's age, his long history of working in Australia in his nominated occupation, his financial support of his family in the Philippines, and the presence of his daughter and grandchildren in Australia. Despite finding the applicant's need to remain in Australia to support his family was not "compelling" in the highest sense, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled.

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