GILL (Migration)

This matter concerned an application by Mr Gill for review of a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the sponsoring employer's failure to hold a valid nomination, a compliance issue arising from the employer's external administration. The applicant sought to have the cancellation decision set aside, arguing that the circumstances leading to the cancellation were beyond his control and that he had taken steps to secure new employment and a new nomination.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, notwithstanding the existence of a ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth). The Tribunal was required to consider the relevant circumstances, including the purpose of the applicant's stay, the reasons for the cessation of his employment, and his efforts to regularise his immigration status.

The Tribunal reasoned that while the ground for cancellation existed, it did not mandate cancellation. In exercising its discretion, the Tribunal had regard to the applicant's purpose for being in Australia, which had ceased with his former employment. However, it found that the cessation of employment was due to factors beyond the applicant's control, specifically the sponsoring employer's failure to comply with its obligations and subsequent external administration. The Tribunal noted the applicant's efforts to find a new nominating employer and his pursuit of a new nomination application. Furthermore, the Tribunal considered the applicant's history in Australia, including his academic progress as a student, his marriage to an Australian resident who was a valuable employee, and the potential for his skills to benefit an Australian business through the new nomination.

Ultimately, the Tribunal concluded that the factors favouring the non-cancellation of the visa outweighed those favouring cancellation. Accordingly, 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 concerning a second applicant.