Girau (Migration)

The Administrative Appeals Tribunal considered the case of Mr Girau, who sought to set aside a decision to cancel his Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose because Mr Girau ceased employment for a period exceeding 90 consecutive days, which is a breach of a condition attached to his visa.

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. The Tribunal was required to determine if Mr Girau had complied with the condition that he must not cease employment for more than 90 consecutive days. If this ground was established, the Tribunal then had to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that Mr Girau did indeed breach the 90-day employment condition, as he ceased work on 12 March 2017 and did not recommence employment until November 2017. However, the Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered various factors, including Mr Girau's personal circumstances, such as his recent marriage and desire to start a family, and his economic and political considerations regarding Europe. It also took into account the circumstances surrounding his cessation of employment, including an injury that partially prevented him from working, his employer's alleged response, and his subsequent genuine but unsuccessful attempts to secure alternative sponsorship.

Ultimately, the Tribunal concluded that, having regard to all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision to cancel Mr Girau's Subclass 457 visa and substituted a decision not to cancel it.