Ralph (Migration)

This matter concerned the review of a decision by the Department of Immigration and Border Protection to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, a citizen of the United Kingdom. The applicant had been granted the visa to work as an Electrician (Special Class) for RCR Tomlinson Ltd, subject to condition 8107, which required him to work in his nominated occupation and stipulated that he must not cease employment for more than 90 consecutive days. The Department was notified that the applicant had ceased employment on 4 July 2016, and following a notice of intention to cancel, the applicant’s visa was cancelled on 19 January 2017. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the delegate’s decision to cancel the applicant’s visa should be affirmed. This required the Tribunal to determine if the ground for cancellation existed, and if so, whether the discretion to cancel the visa should be exercised, having regard to all relevant circumstances, including government policy and the applicant's submissions regarding hardship. The applicant had argued that his redundancy was unexpected, that he had accrued significant debt, that his wife's mental health had suffered, and that they faced hardship upon return to the United Kingdom due to lack of accommodation and poor employment prospects.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, as the applicant had breached visa condition 8107 by ceasing employment for more than 90 days. The Tribunal then considered its discretion, noting that the applicant's original purpose of working for the sponsor no longer existed and that despite having approximately two years since ceasing employment, there was no evidence of him securing new sponsorship or a nomination approval. While acknowledging the financial and emotional hardship submissions, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the applicant had sufficient time to mitigate the breach. The Tribunal affirmed the decision to cancel the visa. The Tribunal also noted it had no jurisdiction with respect to a second applicant.