Guan (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first named applicant. The second named applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal found it had no jurisdiction in relation to the second applicant. The first applicant had ceased employment with his sponsoring business on 1 July 2015, and a notice of intention to cancel his visa was issued on 20 January 2016. Despite the applicant's efforts to find a new sponsor, his visa was ultimately cancelled on 10 February 2017.

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 established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8107(3)(b) of his visa, which stipulated that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The Tribunal also considered the applicant's submissions regarding his attempts to secure new employment and the financial information provided by a prospective employer.

The Tribunal reasoned that the applicant had indeed breached condition 8107(3)(b) as he ceased employment on 1 July 2015 and remained unemployed for a period exceeding 90 consecutive days before his visa was cancelled. The Tribunal found that the ground for cancellation was therefore established. In exercising its discretion, the Tribunal considered the applicant's circumstances, including his efforts to find new employment and the financial viability of a prospective employer. However, it concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, noting that the applicant's visa would have expired on 16 September 2017 in any event and that he was not employed by an approved sponsor at the time of the decision.

Consequently, the Tribunal affirmed the decision to cancel the first named applicant's Subclass 457 visa. The Tribunal also reiterated that it had no jurisdiction with respect to the second named applicant, whose visa cancellation was a self-executing consequence of the first applicant's visa cancellation under section 140(1) of the Act.