OH (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 19 October 2016, valid until 19 April 2019. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation on 13 September 2017, citing the applicant's cessation of employment with his nominating business on 6 January 2017 and his failure to have an approved nomination for more than 90 consecutive days thereafter. The applicant responded, indicating he had moved interstate and believed a new sponsor would handle the nomination transfer, which did not eventuate. The delegate cancelled the visa on 25 September 2017, finding a breach of visa condition 8107(3)(b). The applicant sought review by the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal also considered the applicant's compliance with his visa conditions, his conduct towards the Department, and the circumstances surrounding the cancellation.

The Tribunal found that the ground for cancellation existed, as the applicant had ceased employment with his sponsoring business for a period exceeding 90 consecutive days, thereby breaching condition 8107(3)(b). In exercising its discretion, the Tribunal noted that the applicant had not been the subject of a current approved nomination since January 2017 and had had ample opportunity to secure a new nomination. The Tribunal considered it the applicant's responsibility to be aware of and comply with his visa conditions, including the 90-day employment requirement, and to utilise resources like the Visa Entitlement Verification Online (VEVO) system. Despite acknowledging the applicant's general cooperation with the Department, the Tribunal concluded that the breach of condition and the prolonged period without an approved nomination weighed against the exercise of discretion not to cancel the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.