VENERUSO (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa granted to the first-named applicant. The dispute arose because the applicant ceased to work in his nominated occupation for his most recently approved sponsor for more than 90 consecutive days, thereby breaching condition 8107 of his visa. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered the evidence, which indicated that the applicant's sponsor, Mar Mia Holdings Pty Ltd, ceased operations on 15 February 2017, and the applicant ceased employment on or before 14 February 2017. As at the date of visa cancellation, 20 September 2017, the applicant had not worked for his sponsor for more than 90 consecutive days. The applicant argued that he continued to work for a new entity, Mia Pizzeria, which he believed was the same business under a different name, but the Tribunal found that this new entity had not sought approval as a standard business sponsor. Consequently, the Tribunal was satisfied that the ground for cancellation existed due to the breach of condition 8107(3)(b).

In exercising its discretion to cancel the visa, the Tribunal noted that the applicant had not been the subject of an approved nomination since February 2017 and had not worked for an approved sponsor in an approved occupation since that time. While acknowledging the applicant's general cooperation with the Department, the Tribunal found that his failure to notify the Department of the cessation of employment and his responsibility to be aware of and comply with his visa conditions, including through the VEVO system, weighed against him. The Tribunal affirmed the decision to cancel the first-named applicant's visa. The Tribunal also stated it had no jurisdiction with respect to the second-named applicant.