1510276 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had been granted a Subclass 457 (Business Long Stay) visa. The dispute arose when the Minister, through a delegate, cancelled the applicant's visa on the grounds that the applicant had failed to comply with a condition of that visa. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the grounds for cancellation existed under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if a visa holder has not complied with a visa condition. Specifically, the Tribunal had to determine if the applicant had breached condition 8107(3)(a)(i), which required the applicant to work only in the occupation listed in the most recently approved nomination. If the grounds for cancellation were found to exist, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that the applicant had breached condition 8107(3)(a)(i) based on the applicant's own admissions to the Department. The applicant stated that he had spent a significant portion of his time operating and repairing mill machinery, duties more aligned with a machine operator than a Production Manager, which was the nominated occupation. The Tribunal also noted departmental records indicating the applicant had been engaged in constructing the mill and employed by another entity during the period his visa was granted. While the applicant expressed a desire to remain in Australia and his nominating employer indicated a willingness to continue employing him, the Tribunal found no evidence of an approved sponsorship or nomination for the applicant. Considering these factors, including the purpose of the visa and the lack of current sponsorship, the Tribunal concluded that the grounds for cancellation were made out and that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.