McQuaid (Migration)

This matter concerned an application for review of a decision to cancel a Subclass 457 (Temporary Work (Skilled)) visa. The applicant, Mr McQuaid, had been granted the visa to work as a Transport Company Manager. The visa was cancelled under s 116(1)(b) of the Migration Act 1958 (Cth) due to a failure to hold a valid nomination following the cessation of his employment.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal noted that the ground for cancellation did not mandate its exercise.

In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including the purpose of his stay, his compliance with visa conditions prior to his employment cessation, and the reasons for that cessation. The Tribunal found that the applicant had developed medical issues that led him to cease employment, and that these issues were beyond his control. Since rectifying his health, the applicant had actively sought to regularise his immigration status by securing a new nomination from Wagyu Pty Ltd. The Tribunal received compelling evidence of the value and contribution the applicant would make to this new employer. The Tribunal also noted the applicant's long-term de facto relationship and his partner's relevant skills.

Weighing all the circumstances, the Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second named applicant.