MALIK (Migration)

This matter concerned the review of a decision by the Minister to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had failed to commence working for his sponsoring employer within the prescribed timeframe, leading to the cancellation of his visa. The applicant had subsequently departed Australia and was unable to secure an approved nominating business. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had breached a condition of his visa, specifically condition 8107, which required him to commence employment with his sponsoring employer, Anderson Recruiting and Training Pty Ltd, within 90 days of his arrival in Australia. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to affirm the cancellation decision, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8107 as he ceased employment with his sponsor on 9 July 2017 and had not secured an approved nomination from another business since that time. While acknowledging the applicant's stated reasons for leaving Australia and his subsequent efforts to find new employment, the Tribunal noted that 17 months had passed since he ceased working for his original sponsor without securing a new approved nomination. The Tribunal concluded that the purpose for which the visa was granted had ended and that the lack of an approved sponsor meant the applicant could not satisfy the requirements of the Subclass 457 visa program.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa. The Tribunal noted that it had no jurisdiction concerning any other applicants.