Shrestha (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant ceased employment with their sponsor and did not resume work within the stipulated 90-day period, leading to a notice of intention to cancel the visa. The applicant did not provide a substantive response to the notice, and consequently, was not entitled to appear before 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. Section 116(1)(b) permits cancellation if the Minister is satisfied that the visa holder has not complied with a condition of their visa. Condition 8107, relevant to this case, required the applicant to work only in the nominated occupation and to not cease employment for more than 90 consecutive days.

The Tribunal reasoned that the evidence, including correspondence from the sponsor, indicated the applicant did not commence work within 90 days of the visa grant and subsequently ceased employment, exceeding the 90-day limit without resuming work. The applicant's responses were found to be contradictory and unsupported by the employer. While acknowledging potential hardship from returning to Nepal, the Tribunal found no favourable information or evidence of significant ties to Australia that would outweigh the non-compliance with visa conditions. The Tribunal concluded that the ground for cancellation was made out and exercised its discretion to affirm the cancellation decision.