Gill (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa granted to the applicant, who was sponsored by Guraya Group Pty Ltd. The ground for cancellation was that the applicant had ceased employment with her sponsor, which, under visa condition 8107(3)(b), could not exceed 90 consecutive days. The applicant's original sponsor had its approval cancelled, and the applicant was notified to secure a new sponsor. The applicant attempted to secure new sponsorship through a new business operated by her former boss, but this nomination application was refused. Subsequently, the applicant's Subclass 457 visa was cancelled. The case came before the Tribunal for review of this cancellation decision.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's Subclass 457 visa was correct, considering the circumstances. This involved determining if the ground for cancellation under s.116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances, including matters raised by the applicant and relevant policy guidelines, while acknowledging that policy guidelines are not legally binding.

The Tribunal found that the ground for cancellation under s.116(1)(b) was established. However, it then proceeded to consider the exercise of discretion regarding cancellation. The Tribunal took into account that the applicant had been in Australia since 2008, had completed vocational training, and had family members residing in Australia, including children born in 2019. It noted the applicant's efforts to secure new sponsorship, including a recently lodged nomination application with Indo Oz Pty Ltd, demonstrating her intention to continue working in her nominated occupation. The Tribunal concluded that, in light of these circumstances, including the applicant's proactive steps to regularise her migration status and the pending nomination application, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction with respect to other applicants.