Khan (Migration)

The Administrative Appeals Tribunal considered the case of Mr Khan, who sought review of the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant ceasing employment for more than 90 consecutive days, which contravened a condition of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant's visa required him to not cease employment for more than 90 consecutive days.

The Tribunal found that the applicant had indeed ceased employment for more than 90 days. However, it accepted the applicant's explanation that he believed he was employed by Deimos Technologies, not Geoffrey Nathan Consulting, the sponsoring company. The cessation of Geoffrey Nathan Consulting's sponsorship, which was outside the applicant's control, led to the employment gap. The Tribunal noted that Deimos Technologies wished to re-employ the applicant and had lodged a fresh nomination. Considering the unusual circumstances, the applicant's desire to support his family, and the fact that the ground for cancellation did not mandate cancellation, the Tribunal exercised its discretion not to cancel the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.