Varghese (Migration)

This matter concerned an application to review the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), held by the applicant. The applicant had ceased employment with her sponsor, Pepper Bite Pty Ltd, on 7 October 2016. The visa was granted on 7 January 2014, with the applicant nominated to work as a Cook. The cancellation decision was made by the Minister, and the review was heard by 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 made out, specifically concerning the applicant's failure to comply with visa condition 8107. This condition required the applicant to work only for her sponsor or an associated entity and stipulated that any period of cessation of employment must not exceed 90 consecutive days. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal found that the applicant's employment with the original sponsor ceased on 7 October 2016, meaning the 90-day period for finding new employment expired on 5 January 2017. While the applicant commenced employment with a new sponsor, Wild Horse Pty Ltd, in December 2016, that nomination was withdrawn on 29 September 2017. Subsequently, the applicant secured employment with a further sponsor, Amala Australia Pty Ltd, on 20 October 2017, and a nomination application was lodged the same day. The Tribunal accepted that the applicant had actively sought new employment within the prescribed timeframes, despite delays in the nomination processes by the subsequent sponsors. Considering the applicant's long period of residence in Australia, her qualifications, and her efforts to secure new employment, the Tribunal concluded that the discretion to cancel the visa should not be exercised.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.