staunton (Migration)

The Administrative Appeals Tribunal considered a case involving the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant, a citizen of the United Kingdom, had been granted the visa to work as a marketing and sales manager for a sponsor. The dispute arose when the Department of Home Affairs formed the belief that the applicant had ceased employment with his sponsor for more than 60 consecutive days, a breach of a visa condition.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been made out, specifically concerning the applicant's compliance with visa condition 8107(3)(b). This condition requires a holder of a Subclass 457 visa to work only for their sponsor or an associated entity. If a ground for cancellation was established, the Tribunal then had to determine whether, in the exercise of its discretion, the visa should be cancelled, considering all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) by ceasing employment with his sponsor for a period exceeding 60 days. However, the Tribunal also considered several mitigating factors. These included the applicant's assertion that he had been made to take extensive unpaid leave, that he had secured new employment after becoming aware of the non-compliance, and that he had not been notified of the cessation of his employment by the sponsor. Weighing these factors against the breach, the Tribunal concluded that the circumstances did not warrant the cancellation of the applicant's visa.

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