Remollo (Migration)

This matter concerned an appeal by Marte Remollo against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that Mr. Remollo had failed to comply with condition 8107(3)(b) of his visa, which requires that a holder who ceases employment must not be unemployed for more than 60 consecutive days. The cancellation decision was made by a delegate of the Minister.

The primary legal issue before the Tribunal was whether the ground for cancellation, namely the breach of the 60-day employment condition, was made out. If the ground was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation did exist, as Mr. Remollo had ceased employment with his sponsoring employer, Collier & Miller Pty Ltd, for more than 60 consecutive days. However, the Tribunal then considered the exercise of discretion. It had regard to Mr. Remollo's efforts to secure new employment within the 60-day period, including lodging a nomination application with Samaras Structural Engineer which was refused on a technicality, and subsequently lodging another nomination application with LAI Industries Pty Ltd which was also refused but was currently on appeal to the Administrative Appeals Tribunal. Furthermore, the Tribunal took into account Mr. Remollo's personal circumstances, including being the sole financial support for his aged parents in the Philippines and having ongoing financial commitments in Australia.

On balance, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to the effect that Mr. Remollo's Subclass 457 visa would not be cancelled.