POWER (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was granted on 23 April 2015, with KNH Piping P/L as the approved sponsor. The dispute arose when the applicant ceased employment with KNH Piping P/L on or before 17 August 2017, due to the sponsor's Australian Business Number being cancelled. The review was heard by Mr S Norman.

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 established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8107(3)(b) of their visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days for visas granted before 19 November 2016.

The Tribunal reasoned that the applicant had indeed breached condition 8107(3)(b) as they ceased employment with their sponsor for a period exceeding 90 days. While the applicant did not dispute this breach, they sought to explain their understanding of their ability to work for a new sponsor based on advice from a previous migration agent and the lodgement of a new sponsorship application. However, the Tribunal found that the applicant's intention for remaining in Australia was no longer aligned with the purpose of the Subclass 457 visa, given that their original sponsorship had ended and they did not have an approved nomination for that visa. The Tribunal considered the circumstances as a whole, including the applicant's explanation and the purpose of the visa, and concluded that the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.