1609189 (Migration)

The Administrative Appeals Tribunal considered the decision to cancel Mr Kumar’s Subclass 457 visa. Mr Kumar’s visa was granted on the basis of a nomination by Gurpreet Batra Pty Ltd, but this sponsorship ceased when the company went into liquidation. The Department of Immigration formed the opinion that Mr Kumar had breached visa condition 8107 by exceeding the 90-day period allowed for ceasing employment with his sponsor without securing new employment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether Mr Kumar had complied with visa condition 8107. This condition, applicable to Subclass 457 visas granted under clause 457.223(4) of Schedule 2 of the Regulations, mandates that the visa holder work only in the nominated occupation and for the sponsoring employer or an associated entity, and that any cessation of employment must not exceed 90 consecutive days. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if the ground for cancellation was established.

The Tribunal found that the ground for cancellation under section 116(1)(b) did exist, as Mr Kumar had ceased employment with his original sponsor and the 90-day period had passed. However, the cancellation of a visa under this section is not mandatory. The Tribunal then considered its discretion, having regard to relevant circumstances including government policy and the specific facts of Mr Kumar’s case. The Tribunal noted Mr Kumar’s extensive experience as a Cook, his pending nomination by a new approved sponsor, Lyontz Enterprise Pty Ltd, and the genuine need for a Cook in the remote location of Yellowdine, Western Australia. The Tribunal accepted that Lyontz had made genuine efforts to fill the position and that finding suitable staff for such locations was difficult.

Ultimately, the Tribunal concluded that the evidence favouring not cancelling Mr Kumar’s visa outweighed the evidence favouring cancellation. Therefore, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Kumar’s Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning other applicants.