Bansal (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, Mr. Bansal, had been nominated by PUNJAB EXPRESS CARRIERS PTY LTD to work as an Accountant. The dispute arose because the applicant ceased employment with his sponsor on 12 January 2017 and had not been employed by them or an associated entity for more than 90 consecutive days, thereby breaching a condition of his visa. Subsequent nomination applications to work for a different entity were refused. The Administrative Appeals Tribunal (AAT) considered whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107(3)(b) of his Subclass 457 visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days. If this ground for cancellation was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances, including government policy and the applicant's personal circumstances.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) by ceasing employment with his sponsor for a period exceeding 90 days. The Tribunal noted that the nominated occupation was not one that exempted the applicant from this condition. In considering the exercise of discretion, the Tribunal acknowledged the applicant's stated desire to remain in Australia and his history of study and previous relationships in Australia. However, it gave little weight to these factors, finding no compelling need for the applicant to remain in Australia and noting that his intention to remain permanently was inconsistent with the temporary nature of the Subclass 457 visa. The Tribunal considered the breach of condition 8107(3)(b) to be a fundamental condition of the visa.

Ultimately, the Tribunal concluded that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. After considering all the circumstances, the Tribunal affirmed the decision to cancel the applicant's visa.