Maharjan (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with their sponsor, Swagmans Bakery Pty Ltd, and the visa was cancelled on the basis that the applicant had not complied with Condition 8107, which requires that a visa holder not cease employment for more than 90 consecutive days. The applicant argued that despite the sponsor's accidental de-registration with ASIC, they had continued to be employed by the bakery, and the de-registration was in the process of being rectified.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had failed to comply with Condition 8107 by ceasing employment for more than 90 consecutive days. The delegate had formed the view that the applicant had ceased employment because the sponsor was deregistered, and the ASIC process for re-registration had not been finalised.

The Tribunal considered evidence, including a full ASIC extract for Swagmans Bakery Pty Ltd as at 29 June 2020, which revealed the company had been continuously registered since 15 February 2007. In light of this information, the Tribunal found that there was no basis to conclude that the applicant had ceased employment with their sponsor in contravention of Condition 8107. Consequently, the Tribunal was not satisfied that the ground for cancellation existed, and therefore the power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.