LI (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, identified as LI (Migration). The dispute arose from the applicant ceasing employment with their sponsoring employer, Max Construction Pty Ltd, and failing to secure a new approved nomination within the prescribed timeframe. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had breached condition 8107(3)(b) of their visa, which mandates that if the holder ceases employment, they must secure a new approved nomination within 90 consecutive days. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as they ceased employment on 1 September 2015 and did not obtain a new approved nomination within 90 days, nor within the subsequent three years. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted that the applicant's purpose for the visa was to work as a Bricklayer for Max Construction Pty Ltd, a purpose that ended with their cessation of employment. The Tribunal weighed the applicant's submissions regarding hardship, including being the sole income earner for his family, against the fact that the applicant possessed skills that should enable re-employment in his home country. Ultimately, the Tribunal concluded that the prolonged period without employment and the inability to secure a new nomination weighed in favour of cancellation.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.