Monga (Migration)

This matter concerned an application for review of the Minister's decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Monga. The cancellation was based on the applicant's failure to comply with a condition of his visa, specifically that he had ceased employment with his sponsoring employer, Varpreet Batra Pty Ltd, for a period exceeding 90 consecutive days after the sponsor went into liquidation. The applicant had advised the Department of this cessation of employment.

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. The Tribunal was required to determine if the applicant had breached visa condition 8107(3)(b), which mandates that a holder of a Subclass 457 visa must work only for their approved sponsor or an associated entity, and that the period of cessation of employment must not exceed 90 consecutive days.

The Tribunal found that the ground for cancellation was established, as the applicant had indeed ceased employment for more than 90 days following the liquidation of his sponsoring employer. However, the Tribunal then considered the exercise of its discretion. It noted that the cancellation was not mandatory. In exercising its discretion, the Tribunal had regard to the applicant's history, his intention to continue working in Australia in a skilled occupation, and the fact that a new employer, Trident Hospitality Pty Ltd, had lodged a nomination application and was approved as a standard business sponsor. The Tribunal concluded that the circumstances favouring non-cancellation, including potential family hardship and the applicant's efforts to secure new employment, outweighed those favouring cancellation.

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