VARUDELLI (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Business (Long Stay)) visa held by the applicant. The dispute arose because the applicant's nominating sponsor, Sage Food Co Pty Ltd, had its status cancelled under section 140M of the Migration Act 1958 (Cth) after the applicant's nomination was approved. The applicant's visa was subsequently cancelled by the delegate.

The Tribunal was required to determine whether the prescribed ground for cancellation under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) was met, and if so, whether to exercise its discretion to affirm the cancellation decision. This regulation permits the cancellation of a 457 visa if the standard business sponsor who nominated the applicant has had their sponsorship cancelled or barred.

The Tribunal found that the ground for cancellation was established, as the applicant's nominating sponsor's status had indeed been cancelled under section 140M. Although this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted that the applicant had ceased employment with the original sponsor and had not secured an approved nomination with a new sponsor, which would likely lead to a breach of visa condition 8107 if the visa were reinstated. The Tribunal reasoned that a Subclass 457 visa is for a temporary stay, and holders should anticipate departure. The applicant had been granted the visa in 2012 and had ample time to make arrangements for departure or to seek an alternative lawful basis for remaining in Australia. The Tribunal concluded that the applicant had sufficient time to prepare for departure or to secure a new sponsor and nomination.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal also noted that it had no jurisdiction to review the cancellation of visas held by other applicants, as those cancellations occurred by operation of law and were not subject to review.