Khan (Migration)

This matter concerned an application by Mr Khan for review of the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The ground for cancellation was that the applicant's sponsor, OTSC, had its approval as a sponsor cancelled and was barred from making further applications. The applicant claimed that a new offer of employment from Optimums Auto Care (OAC) was independent and that any hardship caused by cancellation was beyond his control, particularly in light of his family's emotional distress following the death of their infant son and his daughter's well-being in Australia.

The Tribunal was required to determine whether to affirm the delegate's decision to cancel the applicant's visa, considering the applicant's submissions regarding the circumstances of the cancellation, the best interests of his child, and the potential hardship to his family. Specifically, the Tribunal had to assess whether the offer of employment from OAC constituted a valid basis for the applicant to remain in Australia, given that OAC appeared to be a related entity to the previously barred sponsor, and whether the applicant had provided compelling reasons for him and his family to remain in Australia.

The Tribunal found that the offer of employment from OAC was not from an independent third party and that OAC was likely a related entity to the barred sponsor, OTSC. Consequently, the Tribunal concluded that the applicant was no longer working for an approved sponsor and that the purpose of his stay was no longer aligned with the visa conditions. While acknowledging the applicant's compliance with visa conditions and the emotional hardship his family had experienced, the Tribunal found no compelling reason for the applicant to remain in Australia, noting his qualifications as a motor mechanic and the support of his family in Pakistan. The Tribunal also considered the best interests of the applicant's daughter, concluding that while her return to Pakistan might cause emotional hardship, she would remain with her parents and potentially be reunited with extended family, and there was no evidence she would suffer harm.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.