Lahav (Migration)

This matter concerned an application to review the cancellation of a Temporary Business Entry (Class UC) Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa to work as a Software Engineer for Hyper Anna Pty Ltd. The Department of Home Affairs had initiated cancellation proceedings under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had ceased employment with his sponsor and had not secured new employment within the 60-day period stipulated by visa condition 8107(3)(b). The applicant's employment ceased on 15 July 2019, and the 60-day period expired on 13 September 2019.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was made out, and if so, whether to exercise its discretion to cancel the visa. The Tribunal accepted that the applicant had failed to comply with visa condition 8107(3)(b), as he had ceased employment with his sponsor and the 60-day period had elapsed without him securing new employment that would permit him to retain his visa. This established the ground for cancellation under section 116(1)(b).

However, the Tribunal then considered whether to exercise its discretion not to cancel the visa. The applicant provided substantial evidence and submissions highlighting his high professional skills and expertise in the IT industry, particularly in FinTech, which were in high demand in Australia. The Tribunal noted the global boom in this sector and the increased need for IT professionals due to the COVID-19 pandemic, referencing articles and lists of in-demand occupations. The applicant also presented evidence of his community work in Australia and alluded to family mental health issues and the COVID-19 outbreak in Israel as factors necessitating his continued presence in Australia. The Tribunal found that these circumstances, when considered as a whole, weighed against 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 other applicants.