JAISWAL (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Jaiswal. The dispute arose because the applicant ceased employment with his sponsoring employer, VENSRI PTY LTD, for a period exceeding 60 consecutive days, which is a breach of visa condition 8107. The applicant contended that his employment termination was beyond his control, occurring after his employer's operations were taken over by a head operator, Caltex, who subsequently terminated sponsored employees' contracts.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was made out, and if so, whether the applicant's visa should be cancelled. Specifically, the Tribunal had to assess if the applicant had complied with visa condition 8107, which mandates working only in the nominated occupation and limits the period of cessation of employment to 60 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) by ceasing employment for more than 60 days. However, it then proceeded to consider the exercise of discretion. The Tribunal gave weight to the applicant's explanation that his employment termination was involuntary, resulting from his employer's takeover by Caltex. It also noted the applicant's efforts to secure new employment in his nominated occupation and his otherwise compliant conduct. Balancing these factors, the Tribunal concluded that the circumstances warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.