Morgan (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 19 September 2015, valid until 19 September 2019, to work as a Program or Project Administrator for Wood & Grieve Engineers Pty Ltd. The applicant ceased employment with this sponsor on 30 June 2016. Following a notice of intention to consider cancellation and the applicant's response, the delegate cancelled the visa on 2 December 2016. The applicant sought review of this decision by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the grounds for cancellation of the applicant's visa existed, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal was required to determine if the applicant had complied with the condition of her visa that prohibited ceasing employment for more than 90 consecutive days. If this ground for cancellation was established, the Tribunal then had to consider all relevant circumstances in deciding whether to exercise its discretion to cancel the visa, having regard to the applicant's submissions and evidence.

The Tribunal found that the applicant did not comply with visa condition 8107(3)(b), as she ceased employment for a period exceeding 90 consecutive days. Consequently, the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was established. However, the Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered the applicant's circumstances, including her de facto relationship, her efforts to find new employment, and the potential hardship to her new employer. While acknowledging the purpose of a Subclass 457 visa is temporary work, the Tribunal ultimately decided to set aside the cancellation decision.

The Tribunal set aside the delegate's decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel the visa.