Seguia (Migration)

This matter concerned an appeal before the Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his original sponsor, Alloy Steel, and subsequently commenced employment with a new approved sponsor, Transcrete Pty Ltd. However, the applicant later resigned from Transcrete and returned to employment with Alloy Steel, but this re-employment occurred more than 90 days after ceasing employment with Transcrete. The cancellation notice was sent to an old address, and the applicant also faced personal hardship due to the death of his wife.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant had complied with condition 8107(3)(b) of his visa, which stipulates that the period of cessation of employment must not exceed 90 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(b) was indeed established, as the applicant had ceased employment with Transcrete and did not commence new employment within the 90-day period. However, the Tribunal exercised its discretion not to cancel the visa. It reasoned that while the technical ground for cancellation existed, the circumstances of the case warranted a different outcome. The Tribunal noted the applicant's long-standing employment history with Alloy Steel, the unfulfilled assurances of re-employment, the personal hardship he had experienced, and the continuing need for his skills by Alloy Steel, which had provided evidence of its intention to re-employ him. The Tribunal concluded that these factors, when considered as a whole, weighed against cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel the visa.