DEVI (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms Devi's Subclass 457 (Temporary Work (Skilled)) visa. Ms Devi, a national of India, was granted the visa based on a nomination by her sponsor, Varpreet, to work as an Events Planner. However, Varpreet subsequently went into liquidation, and Ms Devi ceased employment with them. The Department of Immigration and Border Protection issued a notice of intention to cancel her visa under section 116 of the Migration Act 1958, citing a potential breach of visa condition 8107, as more than 90 consecutive days had passed since she ceased employment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was made out, and if so, whether to exercise its discretion to cancel Ms Devi's visa. Specifically, the Tribunal had to consider if Ms Devi had complied with condition 8107, which generally requires a Subclass 457 visa holder to work only for their approved sponsor and not cease employment for more than 90 consecutive days. The Tribunal also had to assess all relevant circumstances in deciding whether to exercise the discretionary power to cancel the visa, including Ms Devi's purpose for entering and remaining in Australia, her compliance history, and any new employment or sponsorship arrangements.

The Tribunal found that while the ground for cancellation under section 116(1)(b) was established due to the cessation of employment exceeding 90 days, the cancellation was not mandatory. In exercising its discretion, the Tribunal gave weight to Ms Devi's circumstances, including her lack of awareness of her sponsor's liquidation, her continued receipt of payment, and her subsequent securing of a new employment offer and pending nomination by a new sponsor, Nanotek Technologies Pty Ltd. The Tribunal concluded that the evidence favouring not cancelling the visa outweighed that favouring cancellation.

Consequently, the Tribunal set aside the decision to cancel Ms Devi's Subclass 457 visa and substituted a decision not to cancel it.