Afzal (Migration)

This matter concerned an appeal by the applicant, Mr. Afzal, against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been sponsored by MFL Transport Pty Ltd to work as a Transport Company Manager. The Minister's decision to cancel the visa was based on the applicant's alleged failure to comply with a condition of his visa, specifically condition 8107(3)(a)(i), which required him to work only in the occupation listed in the most recently approved nomination. The case was heard by John Cipolla, Senior Member, of the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) had been made out. This required the Tribunal to determine if the applicant had failed to comply with a condition of his visa. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation existed. Evidence from departmental interviews indicated that the applicant admitted to driving a vehicle or truck for 3 to 6 hours per day, as there were insufficient tasks for him in the nominated position of Transport Company Manager. The Tribunal concluded that these tasks were akin to those of a Truck or Delivery Driver and were outside the scope of the nominated occupation as defined by the ANZSCO occupational dictionary. While the applicant argued that these additional duties assisted him in sustaining his employment and managing his expenses, and highlighted his financial support obligations to his family, the Tribunal weighed these circumstances against the non-compliance. The Tribunal noted that the applicant had failed to secure new employment or a new nomination despite believing he would do so within 8 to 12 weeks of responding to the notice of intention to cancel.

Ultimately, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa. The Tribunal concluded that the circumstances favouring cancellation outweighed those favouring its retention.