MALIK (Migration)

This matter concerned the review of a decision by the Department of Home Affairs to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, a citizen of India. The applicant's visa was granted based on a nomination by SEAQS Pty Ltd, the sponsor. The sponsor subsequently had its business sponsorship cancelled due to providing false or misleading information. This cancellation led to the applicant receiving a Notice of Intention to Consider Cancellation (NOICC) for his visa. The applicant ceased employment with the sponsor and sought a new nomination from Vepabiz Pty Ltd, but this nomination and subsequent sponsorship applications were refused. The Tribunal, constituted by Jennifer Cripps Watts, was required to determine whether to affirm the cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(g) pertains to circumstances where the sponsor's approval has been cancelled or the visa holder has ceased employment with the sponsor. The Tribunal also considered the impact of visa condition 8107(3)(b), which requires a Subclass 457 visa holder to maintain employment in the nominated occupation and limits the period of unemployment to 90 consecutive days.

The Tribunal reasoned that the ground for cancellation under section 116(1)(g) was established because the applicant's sponsor had its approval cancelled and the applicant had ceased employment with that sponsor. The Tribunal noted that the applicant had been unemployed for nearly two years, significantly exceeding the 90-day limit stipulated by condition 8107(3)(b). Despite acknowledging the applicant's attempts to secure new sponsorship, the Tribunal found that he had not been successful and did not hold a valid nomination. The Tribunal concluded that the purpose of the visa, which is to enable skilled work in Australia under a nominated position, had not been fulfilled. Consequently, the Tribunal exercised its discretion to affirm the cancellation decision.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal also stated that it had no jurisdiction with respect to the secondary applicants.