Taylor (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first applicant, Mr Taylor. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review the second applicant's cancellation. The primary dispute revolved around whether Mr Taylor had breached a condition of his visa by ceasing employment for more than 90 consecutive days, and whether the sponsor, Continuity and Compliance Management Services Pty Ltd (CCMS), had ceased trading.

The Tribunal was required to determine if the grounds for cancelling Mr Taylor's visa existed, specifically whether he had complied with visa condition 8107(3)(b), which mandates that the period of ceasing employment must not exceed 90 consecutive days. Additionally, the Tribunal had to consider whether the ground prescribed in regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 applied, relating to the cancellation of the sponsor's approval. If these grounds were established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that Mr Taylor ceased employment with CCMS on 13 October 2015, when the business was placed under involuntary administration. It was further found that even if Mr Taylor ceased employment on 7 April 2016, after being notified of the sponsorship cancellation, the period of cessation exceeded 90 consecutive days, thus breaching condition 8107(3)(b). The Tribunal also found that CCMS's sponsorship approval was cancelled on 6 April 2016, satisfying the ground under regulation 2.43(1)(l)(iv). In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines could be a useful starting point, they were not binding. Despite Mr Taylor's efforts to find new employment and obtaining a job offer, the prospective employer had not yet applied for sponsorship approval or nominated him. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, and that affirming the cancellation was the correct and preferable decision.