Paras (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of an applicant. The dispute arose because the applicant ceased employment with their sponsoring business, Mahalakshmi (WA) Pty Ltd, and did not commence employment with a new sponsor or return to work within the 90-day period stipulated by visa condition 8107(3)(b). The Department of Home Affairs had found this to be a breach of the visa conditions, leading to the cancellation decision.

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. This required the Tribunal to determine if the applicant had failed to comply with a condition of their visa, specifically condition 8107(3)(b), which mandates that a visa holder must not cease employment for more than 90 consecutive days without returning to work for the sponsor or an associated entity. The Tribunal also considered whether, even if a breach occurred, the power to cancel the visa arose, taking into account all relevant circumstances.

The Tribunal reasoned that while the applicant had indeed ceased employment and not returned to work within 90 days, the circumstances surrounding this cessation were outside the applicant's control. The applicant provided evidence that upon returning to Australia, they were informed by their employer that employment would commence on 2 January 2017, with the employer needing time to transition temporary staff. However, on the scheduled start date, the applicant discovered the restaurant had shut down due to unforeseen circumstances, rendering the promised employment position unavailable. The Tribunal concluded that, in light of these facts, it was not satisfied that the ground for cancellation under section 116(1)(b) had been established, as the applicant's inability to comply was due to the employer's business closure.

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