Islam (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was cancelled by the delegate under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had failed to comply with a condition of their visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was made out. This required the Tribunal to determine if the applicant had complied with condition 8107 attached to their Subclass 457 visa, which stipulated that if the holder ceased employment, the period of cessation must not exceed 60 consecutive days. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant ceased employment on or about 8 May 2019 and did not work again until the delegate cancelled his visa on 13 December 2019. It accepted the applicant's evidence that he did not work during this period. The Tribunal calculated that the 60-day period for ceasing employment elapsed by 9 July 2020. Therefore, the Tribunal was satisfied that the applicant did not comply with subclause 3(b) of condition 8107 from 10 July 2020 until the cancellation of his visa, a period of approximately five months. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was established. In considering its discretion, the Tribunal had regard to the applicant's history in Australia, his employment progression, the circumstances surrounding his cessation of employment, and his stated desire for permanent residency sponsorship.

Having found that the ground for cancellation existed and after considering all relevant circumstances, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 457 visa.