1514564 (Migration)

This matter concerned an application to the Tribunal to affirm a decision to cancel the applicant's Subclass 457 visa. The applicant had been granted the visa to work as a 'Graphic Pre-press Trades Worker' for YABS PTY LTD ATF YABS FAMILY TRUST. The Minister's delegate had decided to cancel the visa on the grounds that the applicant had breached visa condition 8107(3)(a)(ii) by working for a different employer, RS & JS Pty Ltd, which was not an associated entity of the original sponsor. The applicant did not respond to the Notice of Intention to Consider Cancellation or provide any submissions to the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The core legal issue was whether the applicant had complied with the conditions of her Subclass 457 visa, specifically the requirement to work only for her approved sponsor or an associated entity.

The Tribunal found that the applicant's nominated occupation, 'Graphic Pre-press Trades Worker', was not a specified occupation for the purposes of paragraph 8107(3A), and that she had been found working for RS & JS Pty Ltd, an entity not shown to be associated with her sponsor. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was made out. In considering the exercise of discretion, the Tribunal noted the applicant's failure to respond to opportunities to provide information or submissions. While acknowledging that this was the only identified breach and that there was no evidence of uncooperativeness or fear of returning to India, the Tribunal found no compelling need for the applicant to remain in Australia, no evidence of hardship if the visa were cancelled, and no indication of extenuating or compassionate circumstances.

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