REGMI (Migration)

This matter concerned the review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant had ceased employment with his sponsoring employer on 2 October 2018. The core of the dispute revolved around whether the applicant had complied with the condition of his visa that he must not remain unemployed for more than 60 days. The applicant's visa had subsequently expired during the review process.

The Tribunal was required to determine two primary legal issues. Firstly, whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had complied with visa condition 8107(3)(b) by not exceeding the 60-day period of unemployment. Secondly, if the ground for cancellation was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case.

The Tribunal found that the ground for cancellation did exist, as the applicant had been unemployed for more than 60 days after ceasing employment on 2 October 2018. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted the applicant's history of holding Subclass 457 visas to work as a cook, the abolition of this visa subclass, and the applicant's failure to secure new employment or sponsorship since October 2018. The Tribunal also considered the applicant's personal circumstances, including his family in Australia and his unsuccessful attempts to find new employment, which were further complicated by the COVID-19 pandemic. Despite these considerations, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to other applicants who may have been members of the applicant's family unit.