Guggal (Migration)

The Federal Court considered a migration matter involving an applicant whose Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), was cancelled. The dispute arose when the applicant ceased employment with his sponsoring employer, and subsequently, the Minister cancelled his visa. The applicant contended that the cancellation was unlawful, arguing that the 90-day period for finding new employment had not expired when the cancellation decision was made.

The primary legal issue before the court was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. Specifically, the court had to determine if the applicant had complied with condition 8107(3)(b) of his visa, which stipulated that if the holder ceases employment, the period of cessation must not exceed 90 consecutive days. The court also considered the exercise of discretion in cancelling the visa, taking into account the applicant's circumstances, including his claims of unfair dismissal, mental health issues, and plans for further study.

The court found that the applicant's assertion that his employment ceased in December 2018, thereby keeping him within the 90-day limit, was inconsistent with his earlier statements and documentary evidence, including a letter from his solicitor, which indicated his employment ceased in September 2018. Consequently, the court determined that the applicant had exceeded the 90 consecutive days of ceased employment without securing a new nomination, thus establishing the ground for cancellation under section 116(1)(b). However, upon reviewing the discretionary factors, the court noted that the applicant's visa was due to expire the day after the cancellation decision. The court ultimately set aside the decision to cancel the visa and substituted a decision not to cancel it, acknowledging that this had little practical impact given the visa's imminent expiry and the lack of evidence of a new sponsorship.