Bhangu (Migration)

This matter concerned an appeal by Mr Bhangu against the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the Minister's satisfaction that Mr Bhangu had failed to comply with a condition of his visa, specifically condition 8107, which required him to work only in the occupation listed in his most recently approved nomination. The delegate's decision was that Mr Bhangu had breached this condition by working as a taxi driver, an occupation different from his nominated occupation of Café or Restaurant Manager.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if Mr Bhangu had indeed failed to comply with condition 8107 of his visa, which stipulated that he must work only in the nominated occupation. The Tribunal also had to consider whether, if the ground for cancellation was established, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that Mr Bhangu's last substantive visa was a Subclass 457 visa granted on the basis of meeting the requirements of subclause 457.223(2) or (4), and that he had commenced working for his employer sponsor as a Café or Restaurant Manager from 29 June 2015, in accordance with the approved nomination. While information was presented suggesting Mr Bhangu had been working as a taxi driver and had logged significant hours driving taxis, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(b) had been established. Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr Bhangu's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.