Wellington (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 17 March 2014, valid until 11 May 2017. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation on 18 April 2017, citing the applicant's cessation of employment with his nominating business on 5 October 2016 and his failure to be the subject of an approved nomination for more than 90 consecutive days thereafter. The applicant's response to this notice was not accessible by the delegate due to an incorrect file format, and despite being given a further opportunity to respond, no further information was provided. Consequently, the delegate cancelled the visa on 11 May 2017. The applicant subsequently sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The specific ground for cancellation related to the applicant's breach of visa condition 8107(3)(b), which required him to remain employed by his sponsor or be the subject of an approved nomination for more than 90 consecutive days. The Tribunal also considered the applicant's submissions regarding hardship, including the existence of an Australian-born child, although it noted a lack of evidence regarding the applicant's relationship with the child.

In its reasoning, the Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment with his sponsor for a period exceeding 90 consecutive days. The Tribunal noted that the applicant had been given ample opportunity to secure a new nomination and had failed to do so, and that he had not worked for an approved sponsor since October 2016. While acknowledging the applicant's general cooperation with the Department, the Tribunal weighed the breach of visa conditions and the prolonged period without an approved nomination heavily against the applicant. The Tribunal also emphasised that it was the applicant's responsibility to be aware of and comply with his visa conditions, including the 90-day employment requirement, and that facilities such as the Visa Entitlement Verification Online (VEVO) system were available for this purpose.

Ultimately, the Tribunal concluded that the grounds for cancellation were established and that the exercise of discretion to cancel the visa was warranted. The Tribunal affirmed the decision of the Department to cancel the applicant's Subclass 457 visa.