Kethireddy (Migration)

The Administrative Appeals Tribunal considered the cancellation of the first applicant's Subclass 457 (Temporary Work (Skilled)) visa. The visa was sponsored by Audelight Pty Ltd, and the applicant was granted the visa on 20 November 2013, valid for four years. The dispute arose when the applicant was observed working for Auspegasus Pty Ltd, trading as Alamanda Café and Providore, at a time when Auspegasus's nomination application was still pending. This led to the delegate cancelling the applicant's visa on 22 November 2016, on the grounds of breaching visa condition 8107(3)(a)(ii)(B).

The primary legal issue before the Tribunal was whether the first applicant had breached condition 8107(3)(a)(ii)(B) of his visa, which stipulated that he must work only in a position within the business of his sponsor or an associated entity. The Tribunal was required to determine if the evidence supported the delegate's finding that the applicant was working for Auspegasus, a business other than his sponsor, Audelight, and if this constituted a lawful ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal reasoned that the evidence, including customer service letters addressed to the applicant and his name appearing on a staff contact list at Alamanda Café with a recent date, indicated he was working for Auspegasus. While the applicant claimed he was merely observing on the day of the site visit and had not worked for Auspegasus before obtaining a bridging visa with work rights, the Tribunal found this assertion unconvincing in light of the other evidence. The Tribunal applied the principle that a visa holder must comply with all visa conditions, and a breach of condition 8107(3)(a)(ii)(B) provides a ground for cancellation under section 116(1)(b) of the Act.

Ultimately, the Tribunal concluded that the evidence supported the finding that the first applicant had breached his visa condition by working for a business other than his sponsor. Balancing all relevant factors, the Tribunal determined that affirming the delegate's decision to cancel the visa was the correct and preferable exercise of its discretion. The Tribunal affirmed the cancellation of the first applicant's Subclass 457 visa.