Habib (Migration)

This matter concerned an appeal by an applicant against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant ceasing employment with his sponsoring business for more than 90 consecutive days, thereby breaching a condition of his visa. The applicant had lodged a new nomination application with an alternate employer after receiving a Notice of Intention to Consider Cancellation, but this application had not yet been finalised. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal considered whether the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was made out. This involved assessing whether the applicant had failed to comply with a condition of his visa, specifically condition 8107(3)(b), which required him to be employed in his nominated occupation for a period not exceeding 90 consecutive days without an approved nomination. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy and the applicant's conduct.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment with his original sponsor in October 2016 and had not been the subject of an approved nomination for more than 90 days. While acknowledging that the circumstances of the original sponsor ceasing to trade were beyond the applicant's control and that a new nomination application had been lodged, the Tribunal noted that this application was lodged significantly after the 90-day period had expired and its outcome was uncertain. The Tribunal considered that the applicant had had ample opportunity to secure a new approved nomination and had failed to do so. It also emphasised the applicant's responsibility to be aware of and comply with his visa conditions, including through the use of online facilities like VEVO. Despite noting the applicant's general cooperation with the Department, the Tribunal concluded that the breach of the visa condition and the prolonged period without an approved nomination weighed against exercising discretion in his favour.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.