1601259 (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 visa. The Department of Immigration and Border Protection had cancelled the visa because the applicant's sponsor, ATS (Asia Pacific) Pty Ltd, was subject to a five-year sponsorship bar under section 140M of the Migration Act 1958 (Cth). This was a prescribed ground for cancellation under regulation 2.43(1)(l)(iv). The applicant did not respond to the notice of intention to cancel the visa.

The Tribunal was required to determine whether to affirm the decision to cancel the applicant's visa, considering the discretion afforded to it under the Act. Specifically, the Tribunal had to assess whether the circumstances warranted the exercise of its power to cancel the visa, taking into account relevant factors outlined in departmental policy, such as the purpose of the visa, compliance with conditions, potential hardship, and the circumstances in which the ground for cancellation arose.

The Tribunal found that the applicant's Subclass 457 visa was granted for the purpose of working in Australia. However, the evidence indicated that the applicant had not been working for the approved sponsor after 29 October 2012, only about three months after commencing the role. While the Tribunal accepted the applicant's desire to remain in Australia, it was not satisfied that significant hardship would be caused by the cancellation. The applicant's stated emotional distress was not supported by medical evidence, and he had no family or partner in Australia. The Tribunal noted that the applicant could continue to receive financial assistance from his sister if he were in Pakistan.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa, concluding that, on the whole of the circumstances, cancellation was warranted.