Mohosin (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first named applicant. The applicant's visa was granted based on a nomination by Rose View Corporate Pty Ltd, which later went into liquidation. The applicant ceased employment with the sponsor on 14 November 2018, the date the sponsor was confirmed to have entered liquidation. The Tribunal, constituted by Jennifer Cripps Watts, was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had breached a condition of his visa, specifically condition 8107(3)(b), which stipulates that the period of cessation of employment must not exceed 90 consecutive days. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case, including matters raised by the applicant and relevant departmental procedures. The Tribunal noted that the ground for cancellation under s 116(1)(b) of the Act did not mandate cancellation.

The Tribunal found that the ground for cancellation existed because the applicant had ceased employment with his sponsor and had not resumed employment within 90 days. However, the Tribunal determined that the applicant's non-compliance was due to circumstances beyond his control, namely the liquidation of the sponsoring company, which was being investigated by regulatory bodies. The applicant was found to be a credible individual who was unaware of the company's financial difficulties until he could no longer work there. Considering the applicant's consistent intention to work as a cook, his marital circumstances, and the hardship his wife was experiencing due to their visa instability, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant’s Subclass 457 visa. The Tribunal also noted that it had no jurisdiction concerning the second named applicant.