Jaiswal (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa was cancelled. The dispute arose because the applicant ceased employment with their sponsoring employer for more than 90 consecutive days, a breach of a visa condition. The applicant contended that the cessation of employment was due to incarceration.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if the applicant complied with condition 8107, which mandated that the visa holder not cease employment for more than 90 consecutive days. The Tribunal also had to consider the applicant's circumstances, including the reason for ceasing employment and any other relevant factors, when deciding whether to exercise the discretion to cancel the visa.

The Tribunal found that the applicant had indeed ceased employment for approximately 15 months due to incarceration, thereby satisfying the ground for cancellation under section 116(1)(b). While the ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It acknowledged that while departmental policy guidelines could be a useful starting point, they were not binding and could not elevate administrative advice into legally necessary considerations. The Tribunal considered the applicant's arrival to work as a Café or Restaurant Manager, his visa grant, and the fact that he no longer had a sponsor and had been released from jail shortly before the hearing. The Tribunal found that the purpose of the visa no longer existed and that the applicant had not demonstrated a compelling need to remain in Australia, beyond his family being unaware of his incarceration.

On balance, the Tribunal concluded that the reasons for exercising the discretion not to cancel the visa did not outweigh the reasons for cancellation. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.