MALIK (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Temporary Work (Skilled) (Class UC) subclass 457 visa. The applicant had been granted the visa on 26 August 2016, with an expiry date of 26 August 2020. The Department had issued a Notice of Intention to Consider Cancellation (NOICC) on 4 April 2018, advising the applicant that it appeared he had breached condition 8107(3)(b) of his visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days. Department records indicated the applicant had ceased employment with his approved sponsor, Anderson Recruitment and Training P/L, on 10 May 2017, meaning he had been unemployed for significantly longer than the permitted period.

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, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) allows for visa cancellation if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) was the relevant condition in this case. The Tribunal was also required to consider the applicant's submissions regarding compelling reasons beyond his control for the breach, his efforts to find new employment, and the potential hardship his cancellation might cause.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment with his sponsor for a period exceeding 90 consecutive days. The Tribunal noted that while the sponsor had closed down, this did not negate the breach. The applicant's submissions regarding financial hardship and emotional stress were acknowledged, as was the fact that he had resided in Australia since February 2012 and may have developed ties. However, the Tribunal considered the purpose of the Temporary Work visa program, which is to enable employers to sponsor overseas workers. At the time of the delegate's decision, the applicant had not worked for an approved sponsor for almost 12 months, and no relevant business nominations had been approved since his visa was granted. The Tribunal was not satisfied that the applicant's present intention in staying in Australia aligned with the visa's intended purpose. The Tribunal deemed the breach of visa conditions to be significant, with approximately 11 months having passed since the applicant ceased employment at the time of the delegate's decision, and approximately 16 months by the time of the Tribunal's decision.

The Tribunal concluded that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.