Hao (Migration)

This matter concerned an appeal before the Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsoring employer, Ausunion, and a new nomination for his employment was not approved within the prescribed 90-day period. The applicant contended that he was dismissed without notice and experienced financial and emotional hardship as a result.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether the applicant had complied with condition 8107(3)(b) of his visa, which mandates that a holder must not cease employment for more than 90 consecutive days. The Tribunal also had to consider whether, if the ground for cancellation was established, it was appropriate to exercise the discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(b) was made out, as the applicant had ceased employment for a period exceeding 90 days. However, the Tribunal then considered its discretion to cancel the visa. It had regard to the applicant's circumstances, including his unfair dismissal, the subsequent sale of the business, his reinstatement with Ausunion under a new contract, and the lodgement of a new sponsorship application. The Tribunal weighed these factors against the grounds for cancellation and concluded that the circumstances favouring non-cancellation outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.