Pothuwila Kankanamge (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first-named applicant. The applicant's visa had been granted on the basis of sponsorship by a company named PREMIUM. The dispute arose when PREMIUM's approval as a sponsor was cancelled, and the applicant subsequently ceased employment with PREMIUM without securing alternative sponsorship within the prescribed timeframe. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had breached a condition of his visa, specifically condition 8107(3)(b), which requires a Subclass 457 visa holder not to cease employment with their sponsoring employer for more than 90 consecutive days without securing a new sponsor. The Tribunal also had to consider whether, having found a ground for cancellation, the circumstances warranted the exercise of the discretion to cancel the visa, taking into account relevant matters including government policy and the applicant's personal circumstances.

The Tribunal found that the applicant had indeed failed to comply with visa condition 8107(3)(b). PREMIUM's sponsorship approval was cancelled on 3 November 2016, and the applicant resigned from his employment on 7 December 2016. Despite attempts to secure new sponsorship with another company, GENERAL, these applications were refused. By the date of the visa cancellation, 102 days had passed since PREMIUM's sponsorship approval was cancelled, exceeding the 90-day limit. The Tribunal reasoned that the purpose for which the visa was granted – to enable the applicant to work for PREMIUM – had ceased to exist from the date PREMIUM lost its sponsorship approval. Considering all the circumstances, including the applicant's resignation and failure to secure alternative sponsorship, the Tribunal concluded that the reasons favouring cancellation outweighed any reasons against it.

Consequently, the Tribunal affirmed the decision to cancel the first-named applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction concerning the second-named applicant.