Kogan (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa based on sponsorship by Seville Pty Ltd for the occupation of Café and Restaurant Manager, subject to condition 8107 which stipulated that if employment ceased, the period must not exceed 60 consecutive days. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation after receiving advice that the applicant had ceased employment on 7 July 2017, potentially breaching condition 8107. The applicant responded to this notice, and the matter proceeded to review by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the applicant's Subclass 457 visa should be cancelled. The Tribunal was required to consider the evidence presented by the applicant, including her efforts to secure new employment and the circumstances surrounding her cessation of employment with the original sponsor, in light of the legislative requirements for visa cancellation and the discretionary power to cancel.

The Tribunal found that the ground for cancellation under s.116(1)(b) was established, as the applicant had ceased employment for a period exceeding 60 days. However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this decision, the Tribunal had regard to the applicant's submissions, which detailed her difficulties in finding a new sponsor due to changes in the Subclass 457 visa scheme and the challenges of recruiting suitable hospitality managers in regional areas. Crucially, the Tribunal noted that the applicant had secured new employment with CBO Management Pty Ltd in her nominated occupation and had been working there for almost 12 months since ceasing her previous employment, with a new nomination application having been approved.

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