Mirza (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant had been sponsored by Libdy Developments, but it was not disputed that the applicant never commenced employment with this sponsor. Instead, the applicant worked for another employer and had paid money to Libdy Developments over a period of two and a half years. The applicant had lodged a complaint with the Department of Home Affairs regarding the sponsor. The Tribunal was required to determine whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was 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. Section 116(1)(b) permits the Minister to cancel a visa if the holder does not comply with a condition of their visa. In this case, condition 8107(3)(a)(ii)(B) required the visa holder to remain employed by their sponsor for the life of the visa.

The Tribunal found that the applicant had not complied with this condition, as he never commenced employment with his approved sponsor and instead worked for another employer. Therefore, the ground for cancellation under section 116(1)(b) was established. The Tribunal then considered whether to exercise its discretion to cancel the visa, having regard to the circumstances. The applicant submitted that he had been threatened by an employee of Libdy Developments after reporting the sponsor to the Fair Work Commission and expressed fear of returning to Pakistan. However, the Tribunal found that while a threat was made, it did not establish a compelling need to remain in Australia. The Tribunal considered the threat not credible given the passage of time and the circumstances in which it occurred, and was not satisfied that the applicant was at risk if he returned to Pakistan. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.