PATEL (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Work (Skilled) visa (subclass 457). The applicant had been granted the visa to work as a Customer Service Manager for an approved sponsor. The sponsor subsequently went into administration, and the applicant ceased employment with them. The applicant was later advised that his visa was being considered for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) on the grounds that he had not complied with a condition of his visa. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107(3)(b) of his subclass 457 visa, which stipulated that if the holder ceased employment, the period of cessation must not exceed 90 consecutive days. The Tribunal also had to consider whether to affirm the decision to cancel the visa, having regard to all relevant circumstances, including government policy and the applicant's personal circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment with his sponsor for a period exceeding 90 consecutive days. While acknowledging that the sponsor's financial difficulties were outside the applicant's control, the Tribunal noted that the applicant had not secured new employment or a new sponsor for over two years since ceasing his initial employment. The Tribunal considered the applicant's submissions regarding the potential hardship to his young family, including his daughters' schooling and well-being, but ultimately concluded that the breach of the visa condition was significant.

After considering all the circumstances, the Tribunal affirmed the decision to cancel the applicant's subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to any other applicants.