1600502 (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 457 visa. The dispute arose from the applicant's engagement in work as a taxi driver, which the delegate of the Minister considered to be a breach of condition 8107 of his visa. Condition 8107 stipulated that the visa holder must work only in the occupation listed in the most recently approved nomination and for the sponsoring business or an associated entity. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out, as the applicant had worked as a taxi driver for a period, an activity that normally attracts remuneration, even though he claimed not to have been paid. This work was not for his approved sponsor, Budget Auto Repairs, nor an associated entity. However, the Tribunal then considered the exercise of its discretion regarding the cancellation. It noted that the applicant had continued to work full-time as a motor mechanic for the approved sponsor, Budget Auto Repairs, which was located in a regional area experiencing a shortage of qualified mechanics. The Tribunal also took into account evidence that the sponsoring business relied heavily on the applicant, experiencing significant operational difficulties, including temporary closure, when his work rights were cancelled.

The Tribunal concluded that, in light of the overall circumstances, including the applicant's role in filling a skills shortage in regional Australia and the negative impact on the sponsoring business, it was appropriate for the applicant to remain in Australia. Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it.