BIN ILYAS (Migration)

This decision concerns an application by BIN ILYAS (the applicant) for review of a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant ceased employment with his original sponsor due to the sponsor's non-compliance with reporting obligations, leading to the cancellation of the sponsorship approval and a two-year bar on the business. The applicant subsequently attempted to secure new sponsorship, but a nomination application was refused without his knowledge. The matter came before the Tribunal for a review of the visa cancellation.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, given that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. The Tribunal was required to consider relevant circumstances, including those outlined in the Department's Procedures Advice Manual, to determine if cancellation was warranted.

The Tribunal reasoned that while the applicant's original purpose for the visa had ceased, the cessation of employment was due to factors beyond his control, specifically the sponsor's non-compliance. The applicant had made genuine efforts to regularise his immigration status by seeking new employment, with evidence indicating several Australian businesses were willing to sponsor him. The Tribunal also took into account the significant disruption to the applicant's family, including his spouse and children who had returned to India, and the financial hardship he would face if forced to apply for a new visa offshore due to section 48 of the Act. These factors, weighing in favour of the applicant, were considered to outweigh those favouring cancellation.

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