Santos (Migration)

This matter concerned an appeal by Jose Santos against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because Mr Santos had ceased employment with his approved sponsor, 'The Marawa Trust & Robert J & Winston Griffiths', on 19 November 2016, and had not secured a new approved nomination within the 90-day period permitted by visa condition 8107(3)(b). The decision under review was made by the Administrative Appeals Tribunal (AAT), presided over by Member Karen Synon.

The primary legal issue before the Tribunal was 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. Section 116(1)(b) permits cancellation if the holder fails to comply with a condition of their visa. In this instance, the relevant condition was 8107(3)(b), which stipulates that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The Tribunal also considered relevant circumstances and government policy in exercising its discretion.

The Tribunal reasoned that the ground for cancellation was established because Mr Santos had indeed ceased employment and had not secured a new approved nomination within the stipulated timeframe. While Mr Santos had indicated he had a new sponsor and that a nomination had been lodged, he failed to provide sufficient evidence or detailed submissions to the Department or the Tribunal to demonstrate why his visa should not be cancelled. The Tribunal noted that the correspondence from his potential new employer was over 14 months old and did not provide current information. Applying the principles outlined in the Department's Procedures Advice Manual (PAM3), the Tribunal considered factors such as hardship, uncooperative behaviour, and international obligations. Finding no compelling reasons or extenuating circumstances to outweigh the breach of the visa condition, and noting the lack of evidence of an approved or pending nomination, the Tribunal concluded that the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel Mr Santos's Subclass 457 visa.