ZAHOOR (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Zahoor. The dispute arose because Mr. Zahoor ceased employment with his sponsoring employer and subsequently breached a condition of his visa by not securing new employment within the prescribed timeframe. The applicant contended that his employment termination was due to his employer's fraudulent practices regarding his wages, and that subsequent attempts to find alternative employment were thwarted by a serious motor vehicle accident.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether the applicant had complied with condition 8107 of his visa, which mandates that a visa holder must not cease employment for more than 60 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed ceased employment for more than 60 consecutive days, thus establishing the ground for cancellation under section 116(1)(b). However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the discretionary aspects. The Tribunal had regard to the applicant's explanation for ceasing employment, his subsequent inability to find new work due to a serious motor vehicle accident and ongoing medical treatment, and the financial implications of having to leave Australia. The Tribunal concluded that the factors favouring the retention of the visa outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision to cancel Mr. Zahoor's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.