Hadkar (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Hadkar. The dispute arose because the applicant ceased employment with his sponsor for more than 60 consecutive days, which is a breach of condition 8107 of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required assessing if the applicant had complied with the conditions of his visa, specifically condition 8107, which mandates that the holder must work only in the nominated occupation and within the sponsor's business, and that cessation of employment must not exceed 60 consecutive days. The Tribunal found that the applicant had indeed ceased employment for over 60 days, thus satisfying the ground for cancellation. However, this ground did not mandate cancellation under section 116(3).

The Tribunal then proceeded to consider the exercise of discretion regarding cancellation. It had regard to the applicant's submissions, including evidence of his efforts to secure new employment and a nomination from a new employer, The Coffee Club in Mount Isa. The applicant explained that his previous employment was terminated due to his sponsor's business closing, and he faced difficulties finding a new sponsor due to economic conditions and the financial commitment involved. He also stated he was unaware of the 60-day timeframe for finding a new sponsor. The Tribunal considered these circumstances, including the applicant's qualifications and his genuine efforts to find alternative sponsorship, in its decision.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 457 visa.