Haloluwa Arachchige (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Business (Long Stay)) visa held by Haloluwa Arachchige. The applicant's visa was granted on the basis of an approved nomination by Sirus International Pty Ltd for the position of Sales and Marketing Manager. The dispute arose when the applicant ceased employment with Sirus International Pty Ltd and subsequently failed to secure another approved nomination within the allowed timeframe, leading to the cancellation of his visa. The decision was made by Bridget Cullen, acting as a Member of the Tribunal.

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. Section 116(1)(b) allows for visa cancellation if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which stipulates that if the visa holder ceases employment, the period of unemployment must not exceed 90 consecutive days. The Tribunal also considered the purpose of the Subclass 457 visa and the applicant's inability to secure another approved nomination.

The Tribunal reasoned that the applicant had ceased employment with his approved sponsor, Sirus International Pty Ltd, on 30 October 2016. Despite lodging new nomination applications with a different entity, these were refused as the entity did not meet the requirements to be a standard business sponsor. The applicant confirmed his employment ceased on 30 October 2016 and provided payslips from the new entity, indicating he had not been employed by his original sponsor since that date. As more than 90 days had passed since he ceased employment with his approved sponsor without securing a new approved nomination, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was established. In exercising its discretion, the Tribunal considered the purpose of the Subclass 457 visa, which is to enable temporary skilled migration for an approved sponsor in an approved occupation. The Tribunal found that the applicant's inability to secure another approved nomination for over two years since ceasing employment with his original sponsor weighed heavily in favour of cancelling the visa, as he was no longer fulfilling the purpose for which the visa was granted.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants.