Rakib (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The ground for cancellation was that the applicant had ceased employment for more than 60 days, thereby failing to comply with condition 8107(3)(b) of their visa. The applicant contended that their cessation of employment was due to redundancy, a matter they argued was beyond their control.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The Tribunal first found that the ground for cancellation was made out, as the applicant had ceased employment on 17 February 2019 and had not secured new employment within the prescribed 60-day period. The Tribunal then considered the applicant's submissions regarding redundancy and the circumstances surrounding the cessation of employment.

In exercising its discretion, the Tribunal acknowledged that the applicant's failure to comply with the visa condition was attributable to being made redundant, which it found to be beyond the applicant's control. This factor was given weight in favour of not cancelling the visa. However, the Tribunal also considered the applicant's history, including their initial arrival on a student visa and subsequent pursuit of a Master of Accounting program, which they did not complete satisfactorily before obtaining the Subclass 457 visa. The Tribunal weighed these factors against the expectation that the applicant would work for the sponsoring employer for the four-year duration of the visa.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa and noted that it had no jurisdiction concerning a second applicant.