Meneghetti Gomes (Migration)

The Administrative Appeals Tribunal considered a dispute between the applicant, Meneghetti Gomes, and the Minister for Immigration, concerning the cancellation of the applicant's Subclass 457 (Business (Long Stay)) visa. The Minister's delegate had decided to cancel the visa on the grounds that the applicant had breached condition 8107 by ceasing employment with his sponsor for a period exceeding 90 consecutive days.

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 Minister's discretion to cancel the visa should be exercised in the applicant's circumstances. Specifically, the Tribunal had to determine if the applicant had indeed breached condition 8107(3)(b) by ceasing employment with his sponsor, BRAZA TRADING P/L, for more than 90 days without a subsequent approved nomination.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established, as the applicant had ceased employment with his sponsor on 27 April 2018, and at the time of the delegate's decision, there was no evidence of a new approved nomination. However, the Tribunal then considered its discretion regarding cancellation. It noted that the applicant had lodged a complaint with Fair Work, received a payout, and importantly, at the time of the Tribunal's decision, the applicant was the subject of a successful nomination approval for a Subclass 482 Temporary Work visa. The Tribunal also had regard to the potential hardship to the applicant and a family member in Australia, and the purpose of the applicant's stay.

Given that the applicant was now the subject of an approved nomination, the Tribunal concluded that the circumstances warranted setting aside the cancellation decision. The Tribunal substituted its own decision not to cancel the applicant's Subclass 457 visa.