FABER STEYER (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Faber Steyer. The dispute arose because the applicant ceased employment with his approved sponsor for more than 90 consecutive days, and a subsequent nomination application for a new sponsor was refused. The Tribunal also noted it had no jurisdiction concerning a second applicant.

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 made out, and if so, whether the discretion to cancel the visa should be exercised. This involved determining if the applicant had breached condition 8107(3)(b) of his visa by ceasing employment for longer than 90 days and whether the purpose for which the visa was granted had ceased.

The Tribunal found that the applicant had indeed ceased employment for more than 90 days, thus satisfying the ground for cancellation under section 116(1)(b). However, the Tribunal then considered its discretion. It accepted the applicant's explanation for ceasing employment, relating to the closure of the business premises. While acknowledging the applicant's intention to continue working in Australia, evidenced by the lodgement of a new nomination application, the Tribunal found that the purpose of the Subclass 457 visa had effectively ceased as the applicant no longer held an approved nomination. Despite this, the Tribunal concluded that the visa should not be cancelled, setting aside the original decision.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal explicitly stated it had no jurisdiction with respect to the second named applicant.