Sharma (Migration)

This matter concerned an appeal against the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been nominated by LINK PEOPLE PTY LTD for the occupation of Accountant (General). The dispute arose because the applicant ceased employment with the sponsor and, according to departmental records, had not had a subsequent approved nomination for over 60 consecutive days, thereby failing to comply with visa condition 8107(3)(b). The decision was heard by Senior Member Antoinette Younes of the Tribunal.

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 established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with condition 8107(3)(b) by exceeding the 60-day period without employment with the sponsor or an associated entity, and if this failure warranted visa cancellation.

The Tribunal found that the applicant had indeed ceased employment with the sponsor on 17 July 2018 and had not had a subsequent nomination approved within the 60-day period stipulated by condition 8107(3)(b). While the applicant presented several mitigating circumstances, including difficulties with migration agents, a pending nomination with another entity (BSV), and personal hardship if returned to Nepal, the Tribunal was not satisfied that these circumstances negated the breach of the visa condition. The Tribunal noted that it is the visa holder's responsibility to comply with visa conditions, and expressed doubt regarding the applicant's claim of not being informed of a previous nomination refusal. The Tribunal concluded that the ground for cancellation existed and, after considering all relevant circumstances, exercised its discretion to affirm the decision to cancel the applicant's visa.