Foo (Migration)

This matter concerned the review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant's visa was granted on the basis of a nomination for the occupation of Café or Restaurant Manager with Public Enterprise Pty Ltd, trading as Sambal Kampung Restaurant. The core of the dispute was whether the applicant had complied with a condition of his visa, specifically condition 8107(3)(b), which stipulated that the period of cessation of employment must not exceed 60 consecutive days.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The specific legal issue was whether the applicant had complied with visa condition 8107(3)(b) by ceasing employment with his sponsor on or about 9 June 2017 and failing to recommence employment within the prescribed 60-day period.

The Tribunal found that the applicant had indeed ceased employment with his sponsor no later than 9 June 2017 and had not complied with condition 8107(3)(b). The Tribunal noted that no evidence was provided to demonstrate that the applicant had obtained a new nomination or returned to work with the original sponsor within the stipulated timeframe. Consequently, the Tribunal was satisfied that the ground for cancellation existed. In considering the exercise of discretion, the Tribunal had regard to the circumstances, including the applicant's purpose for travel and stay, and the significant period of non-compliance, which extended for over two and a half years since mid-2017. The Tribunal concluded that this constituted very significant non-compliance, as working for an approved sponsor in the nominated occupation was essential to the purpose of the visa.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal also noted that it had no jurisdiction with respect to any other applicants.