Le (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The applicant had ceased employment with his sponsoring business in September 2017, and the delegate determined that this period of unemployment exceeded 90 consecutive days, thereby constituting a significant breach. The applicant sought review of this cancellation decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if the applicant had failed to comply with a condition of his visa, specifically condition 8107(3)(b). If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa cancellation should be affirmed, having regard to all relevant circumstances, including government policy, although it was not bound by such policy.

The Tribunal found that the applicant had indeed ceased employment in September 2017 and that the period of unemployment exceeded 90 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged the applicant's attempts to find new employment and a subsequent job offer, but ultimately concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.