Kumar (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by an Indian citizen, Mr. Kumar. The dispute arose after Mr. Kumar accepted an offer of sponsorship from White Tank Hotel Pty Ltd to work as a Cook. He alleged that upon commencing employment, the sponsor attempted to unilaterally vary the terms of his contract, seeking to reduce his salary and increase his working hours beyond those stipulated in the employment agreement. Mr. Kumar contended that he ceased working for the sponsor after two days due to these alleged breaches and a perceived threat from the sponsor to report him to the Department if he did not comply.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the Minister to cancel a visa if satisfied that the visa holder has ceased to be a person to whom the visa could have been granted. The Tribunal was required to consider all relevant circumstances, including discretionary factors, in determining whether to affirm the delegate's decision to cancel the visa.

The Tribunal found that Mr. Kumar had ceased employment with the sponsor for more than 60 consecutive days, which constituted a failure to comply with visa condition 8107(3)(b). This non-compliance was considered substantial, particularly as the sole purpose of his 457 visa was to work for an approved sponsor. While acknowledging Mr. Kumar's account of the sponsor's conduct and his perception of it as threatening, the Tribunal noted that it was the sponsor's responsibility to report any issues. The Tribunal also found that Mr. Kumar had not demonstrated any compelling need to remain in Australia, having resided there for approximately five years as a student and then a 457 visa holder, with no family ties or relationships in Australia beyond a cousin.

Ultimately, the Tribunal concluded that the grounds for cancellation were established and that, after considering all relevant discretionary factors, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel Mr. Kumar's Subclass 457 visa.