KHAN (Migration)

This matter concerned the review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant, Mr. Khan, had been granted the visa to work as a Software and Applications Programmer for his sponsor, Brightstar. The core of the dispute revolved around the date on which Mr. Khan ceased employment with his sponsor, which was critical to determining whether he had breached visa condition 8107.

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, specifically whether Mr. Khan had complied with condition 8107. This condition mandates that a visa holder must work in their nominated occupation and that the period of ceasing employment must not exceed 90 consecutive days. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that while the sponsor initially advised the Department that Mr. Khan had ceased employment on 18 April 2016, the evidence, including an email from the sponsor dated 5 July 2016, indicated that his employment was not formally terminated until that later date. Consequently, the Tribunal determined that Mr. Khan ceased employment on 5 July 2016 and did not return to that employment. As this date exceeded the 90-day limit stipulated in condition 8107, the Tribunal was satisfied that the ground for cancellation existed. In exercising its discretion, the Tribunal considered Mr. Khan's explanation for his absence, including a knee injury requiring treatment in Pakistan and his subsequent establishment of a new company intending to sponsor him. However, after considering all circumstances, the Tribunal concluded that the visa should be cancelled.

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