Ankit (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Ankit. The dispute arose because the applicant was not working in the occupation for which his visa was approved, Corporate Services Manager, but was instead performing duties as a Finance Manager. The sponsor's subsequent nomination for the new role was not approved, and the applicant argued that changing business requirements, along with family emotional and financial hardship, and an active application for a partner visa, warranted setting aside the cancellation.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to assess if the applicant had complied with condition 8107 of his visa, which mandates working in the nominated occupation and limits periods of unemployment. The Tribunal also considered the applicant's submissions regarding hardship and his partner visa application in its discretionary assessment.

The Tribunal found that the applicant had indeed failed to comply with condition 8107, as he had ceased working in the nominated occupation of Corporate Services Manager and commenced working as a Finance Manager without an approved nomination for that role. Consequently, the ground for cancellation under section 116(1)(b) was established. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. The Tribunal acknowledged the applicant's evidence of hardship and his partner visa application, and noted that while policy guidelines like those in the Procedures Advice Manual (PAM3) could be a useful starting point, they were not legally binding. Ultimately, considering all the circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.