Kumar (Migration)

This matter concerned an appeal by Mr. Kumar against the Department's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled on the ground that Mr. Kumar had ceased employment with his sponsoring employer, Chowdury Mizanur Rahman, and had not secured a new approved nomination within the prescribed period. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The primary legal issue was whether Mr. Kumar had breached condition 8107(3)(b) of his visa, which stipulates that a visa holder must not cease employment for more than 90 consecutive days without securing a new approved nomination. The Tribunal also considered the broader purpose of the Subclass 457 visa scheme and whether Mr. Kumar had fulfilled the purpose for which his visa was granted. The applicant argued that departmental processing times for nomination applications and reliance on legal advice should be taken into account, suggesting these factors were beyond his control.

The Tribunal found that Mr. Kumar had indeed ceased employment with his sponsor on 24 January 2019 and had not secured an approved nomination since that date. It noted that multiple nomination applications had been lodged and subsequently withdrawn or refused. The Tribunal reasoned that the purpose of the Subclass 457 visa is to facilitate temporary skilled employment with an approved sponsor, and the applicant's inability to secure a new nomination for over 17 months meant he was not fulfilling this purpose. The Tribunal concluded that this prolonged period without employment and the failure to secure a new nomination weighed heavily in favour of cancelling the visa.

Consequently, the Tribunal affirmed the decision to cancel Mr. Kumar's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to any other applicants.