Dabhi (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)). The dispute arose from the applicant’s failure to comply with a condition of their visa, specifically that the period of unemployment must not exceed 90 consecutive days. The applicant had ceased employment with their sponsor and remained unemployed for a period exceeding 90 days. The decision was made by the Tribunal.

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 established. This required the Tribunal to determine if the applicant had failed to comply with a condition of their visa, namely condition 8107(3)(b), which stipulated a maximum 90-day period of unemployment. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant had indeed ceased employment and that this period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion. In doing so, it had regard to the applicant's personal circumstances, including his family in India and his history of visa applications and employment in Australia. The Tribunal also considered the applicant's admissions of paying his sponsor for nomination, working in an occupation other than that for which he was nominated, and not reporting the alleged exploitative behaviour of his sponsor, which led the Tribunal to conclude he was complicit in breaches of visa conditions.

Ultimately, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa, concluding that, considering all the circumstances, the visa should be cancelled.