Farwaha (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first named applicant, Mr. Farwaha. The dispute arose after Mr. Farwaha ceased employment with his sponsoring business, UT Reservoir Pty Ltd, on 28 February 2018, and subsequently failed to find another approved sponsor within the prescribed timeframe. The visas of other applicants were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to review those cancellations.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel Mr. Farwaha's visa should be affirmed. This required the Tribunal to determine if the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider whether Mr. Farwaha complied with condition 8107(3)(b) of his visa, which mandates that the period of cessation of employment must not exceed 90 consecutive days.

The Tribunal found that Mr. Farwaha ceased employment on 28 February 2018 and that this period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under s.116(1)(b) of the Migration Act 1958. While acknowledging the applicant's submissions regarding mistreatment by his employer and non-payment of superannuation, the Tribunal concluded that these circumstances did not outweigh the reasons for cancellation. The Tribunal considered the applicant's continued presence in Australia and his unsuccessful attempts to secure new sponsorship, noting that his visa would have expired in January 2020 regardless of the cancellation. The Tribunal affirmed the decision to cancel Mr. Farwaha's visa.