Marais (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by Mr. Marais. The dispute arose because Mr. Marais ceased employment with his sponsoring business, which potentially breached a condition of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was made out. This required determining if Mr. Marais had complied with condition 8107(3)(b) of his visa, which stipulates that the period of cessation of employment must not exceed 60 consecutive days. The Tribunal found that Mr. Marais ceased employment on 12 August 2020 and that this period of unemployment exceeded 60 consecutive days, thus satisfying the ground for cancellation. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion.

In exercising its discretion, the Tribunal had regard to the circumstances of the case, including submissions from Mr. Marais and relevant policy guidelines, while acknowledging that such guidelines are not legally binding. The Tribunal noted that Mr. Marais was stood down from his employment due to the COVID-19 pandemic and subsequently resigned to access outstanding payments. His efforts to secure new employment were hampered by the refusal of a nomination application for a metal fabricator position, with the delegate finding his duties were more aligned with a trainer/teacher role. The Tribunal concluded that the reasons for not cancelling the visa outweighed the reasons for cancellation.

Consequently, the Tribunal set aside the decision to cancel Mr. Marais's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.