Nadav (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Nadav. The dispute arose because Mr. Nadav ceased employment with his sponsoring employer, The Warwick Paley Family Trust, on 6 November 2018. The Department of Home Affairs subsequently cancelled his visa on 4 October 2019, finding that he had breached a condition of his visa by remaining unemployed for an extended period beyond the permitted 60 days. Mr. Nadav contended that he was placed on unpaid leave due to business downturn and had not received formal termination, remaining ready and willing to resume his duties.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if Mr. Nadav had complied with visa condition 8107, which mandates that a visa holder who ceases employment must secure new employment or a nomination within 60 consecutive days. The Tribunal also had to consider the relevant factors in exercising its discretion, including the purpose of the visa, the degree of hardship, the circumstances surrounding the cessation of employment, and the best interests of any children involved.

The Tribunal found that Mr. Nadav had indeed failed to comply with visa condition 8107, as he had been out of employment for well over 90 days when the visa was cancelled. However, in considering the exercise of discretion, the Tribunal noted that Mr. Nadav had not been formally terminated and believed he was on extended unpaid leave. While the inability to secure a new nomination weighed against him, the Tribunal also considered the potential hardship and disruption to his children's education and compulsory military service. Ultimately, the Tribunal concluded that, on balance, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel Mr. Nadav's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.