1609209 (Migration)

This matter concerned an appeal by Niraj Pata, a Nepalese citizen, against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa by the Department of Immigration and Border Protection. The visa had been granted based on a nomination by Yeti Trading Pty Ltd to work as a Cook. Yeti Trading notified the Department that Mr. Pata ceased employment on 2 November 2015. Mr. Pata's representative responded to a notice of intention to cancel, confirming the cessation of employment and stating that a new nomination application had been lodged on 10 December 2015. However, the new sponsor withdrew their nomination on 6 May 2016 due to lengthy processing times, and Mr. Pata did not receive the notice of intention to cancel until 23 May 2016.

The primary legal issue before the Tribunal was whether the decision to cancel Mr. Pata's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was justified, considering the circumstances surrounding his cessation of employment and subsequent efforts to secure new sponsorship. The Tribunal was required to determine if the ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal found that while the ground for cancellation under section 116(1)(b) was established, the exercise of discretion to cancel the visa was not warranted. The Tribunal applied the principle that a visa should generally not be cancelled if the circumstances giving rise to the ground for cancellation were beyond the visa holder's control. It was satisfied that Mr. Pata ceased employment due to the liquidation of his sponsor's business and that he had diligently sought new sponsorship, even after the withdrawal of a second nomination due to processing delays. The Tribunal also noted that Mr. Pata had continued to work in his nominated occupation and that cancellation would cause hardship to him and his Australian-born son.

Consequently, the Tribunal set aside the decision to cancel Mr. Pata's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal clarified that it had no jurisdiction concerning any other applicants.