AZAD (Migration)

This matter concerned an application by AZAD (the applicant) to review the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The Department had formed the belief that the applicant had breached a condition of his visa by working for an entity other than his approved sponsor. The Tribunal was required to determine whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were established.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with condition 8107(3)(a)(ii) of his visa, which mandated that he work only for his approved sponsor or an associated entity. The Department's decision to cancel the visa was based on information obtained during a site visit to Mrs Sippy restaurant, where it was alleged the applicant was working. The applicant denied working for Mrs Sippy and provided a statutory declaration detailing his movements and employment history, including a visit to Sydney during which he claims he only visited former work colleagues at Mrs Sippy.

The Tribunal considered the evidence presented by both the Department and the applicant. While the Department's officers reported speaking to the applicant by phone at Mrs Sippy and receiving no dispute to the information that he was working there, the applicant's statutory declaration provided a detailed account of his presence in Sydney for a holiday and his denial of ever working for Mrs Sippy. The Tribunal found that the applicant's explanation for his presence at Mrs Sippy, as a visit to former colleagues, was plausible and that he had not admitted to working there. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(b) had been made out.

As the Tribunal was not satisfied that the ground for cancellation existed, the power to cancel the visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.