Hohmann-Andrasch (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Hohmann-Andrasch. The dispute arose when the applicant ceased employment with her sponsoring employer, the Christian Outreach Centre, on 29 September 2016. The Department of Immigration and Border Protection subsequently issued a Notice of Intention to Consider Cancellation, alleging a breach of visa condition 8107(3)(b), which mandates that a visa holder must not cease employment for more than 90 consecutive days. The applicant responded to this notice, and the delegate of the Minister for Immigration proceeded to cancel her visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's Subclass 457 visa was correct. This involved determining if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should have been exercised in the applicant's circumstances. The Tribunal was required to consider all relevant circumstances, including the applicant's submissions regarding hardship and extenuating circumstances, and to assess whether there were reasons why the visa should not be cancelled, notwithstanding the established ground for cancellation.

The Tribunal found that the applicant had indeed breached visa condition 8107(3)(b) by ceasing employment for more than 90 consecutive days without securing alternative sponsorship, as evidenced by the employer's notification and the applicant's response. While this ground did not mandate cancellation under section 116(3), the Tribunal then considered the exercise of discretion. It acknowledged the applicant's long period of residence in Australia since 2008, the inclusion of her husband and youngest son on her visa, and her unsuccessful attempts to secure new sponsorship, noting legislative changes that now preclude new Subclass 457 nominations. Despite these factors, and while acknowledging the utility of policy guidelines, the Tribunal ultimately affirmed the delegate's decision to cancel the visa, finding that the circumstances did not warrant a departure from cancellation.