Boparai (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, subclass 457, held by Mr. Boparai. The dispute arose because Mr. Boparai, nominated to work as a chef for Super 8 & Co Pty Ltd, was identified working as a heavy vehicle driver for an unrelated company, Rocke Brothers, and its subcontractor M&S Group Pty Ltd. The Department of Home Affairs had cancelled his visa on the grounds that he had not complied with condition 8107(3)(a)(i) of his visa, which required him to work only in his nominated occupation.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether Mr. Boparai had failed to comply with the condition of his visa by working in an occupation other than that for which it was granted. If the ground for cancellation was established, the Tribunal then had to weigh all relevant circumstances, including those raised by the applicant and relevant policy guidelines, in deciding whether to affirm or set aside the cancellation.

The Tribunal found that the ground for cancellation under s.116(1)(b) was indeed made out, as Mr. Boparai had worked as a heavy vehicle driver for a company unrelated to his sponsor. However, the Tribunal then exercised its discretion to set aside the cancellation. It reasoned that Mr. Boparai's deviation from his nominated occupation was due to financial necessity and emotional hardship caused by the COVID-19 pandemic, which had severely impacted the hospitality sector. He had been stood down from his chef position by his sponsor due to legal impediments to business operations and resumed his chef duties when restrictions eased. The Tribunal noted that the sponsor had indicated Mr. Boparai remained an employee and that being stood down due to COVID-19 would not necessarily lead to visa cancellation. Furthermore, the Tribunal considered the significant consequences of cancellation, including limitations on future visa applications and the potential for detention and removal, which it deemed manifestly unfair in these circumstances. The Tribunal also found that Mr. Boparai was not prevented by PIC 4013 from re-applying for a temporary work visa, as a subclass 457 visa was not specified in the relevant schedule.

Consequently, the Tribunal set aside the decision to cancel Mr. Boparai's visa.