GARCHA (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first-named applicant, Mr Garcha. The dispute arose because the applicant's nominating employer, Seifeddine Enterprise Pty Ltd, had ceased trading and was deregistered prior to the approval of the visa nomination. The applicant was unaware of this fact and believed he was employed by a different entity. The Tribunal also noted that the second and third named applicants would face consequential cancellation of their visas if the first applicant's visa cancellation was upheld.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, specifically under regulation 2.43(1)(kb)(iii) of the Migration Regulations 1994, which relates to the genuineness of the nominated position. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was established because Seifeddine Enterprise Pty Ltd had ceased trading before the nomination was approved, meaning the nominated position was not genuine. However, the Tribunal noted that mandatory cancellation was not required under section 116(3). In exercising its discretion, the Tribunal accepted the applicant's evidence that he was unaware of the employer's deregistration and that he had been working as a cook at La Porchetta. The Tribunal also considered the applicant's consistent compliance history since arriving in Australia in 2007, his cooperation with the Department, and his efforts to secure a new nominating employer, evidenced by a subsequent nomination for a Subclass 187 visa.

Consequently, the Tribunal set aside the decision to cancel Mr Garcha's Subclass 457 visa and substituted a decision not to cancel it, allowing him the opportunity to return to Australia and seek alternative sponsorship. The Tribunal determined it had no jurisdiction concerning the other applicants.