ABHISHEK (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Abhishek. The cancellation was based on the ground that the applicant's approved sponsor, Milestone PTY LTD, had its approval as a standard business sponsor cancelled and was subsequently barred from making future applications for a period of five years. This cancellation of the sponsor's approval triggered a prescribed ground for visa cancellation under the Migration Regulations 1994.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the applicant's visa should be cancelled, considering all relevant circumstances. The Tribunal found that the ground for cancellation under s.116(1)(g) of the Migration Act 1958 was made out due to the sponsor's cancellation and bar. However, this ground did not mandate cancellation, allowing the Tribunal to exercise its discretion.

In exercising its discretion, the Tribunal considered the purpose of the applicant's visa, which was to enable him to work in Australia in a skilled occupation for an approved sponsor. The Tribunal noted that the cessation of employment with the original sponsor was beyond the applicant's control, as was a subsequent heart condition requiring surgery. Crucially, the applicant had secured new employment with Luck's Hair and Beauty Salon, which had lodged a new standard business sponsor and nomination application. The Tribunal was satisfied that the applicant was a skilled and financially responsible individual with a compelling need to remain in Australia, and that his circumstances, including the impact of the sponsor's cancellation and his personal health issues, weighed against cancellation.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning a second applicant.