Punnose (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been sponsored by the Indian Empire Restaurant in Tasmania. The ground for cancellation was that the applicant had ceased employment with his sponsor, and the period of unemployment exceeded 90 consecutive days, thereby breaching a condition of his visa. The applicant argued that he ceased employment due to the closure of the restaurant and his desire to relocate to Sydney to assist his wife with her professional registration.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant’s visa was subject to condition 8107(3)(b), which stipulated that a visa holder must not cease employment for more than 90 consecutive days. The applicant ceased employment on 13 April 2018 and had not secured new sponsored employment since that date, despite having lodged further nomination applications.

The Tribunal found that the ground for cancellation was established, as the applicant had indeed ceased employment for a period exceeding 90 days. In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including his wife's pregnancy and attempts to obtain professional registration, as well as the Department's Procedures Advice Manual. However, the Tribunal noted that the applicant had ample opportunity to seek alternative employment and had not secured a new approved sponsor. The Tribunal applied the principle that decision-makers have the discretion to attribute weight to relevant information, citing established High Court authority. Ultimately, the Tribunal concluded that the purpose of the applicant's stay in Australia under the Subclass 457 visa had ceased to exist.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction concerning any other applicants.