Mohammed (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been nominated to work as a Cook by his sponsor, Raaz Pty Ltd. The visa was granted on the condition that the applicant work only in his nominated occupation. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation, alleging the applicant had breached this condition by working as a taxi driver and had therefore failed to meet the requirements for the grant of a subsequent Subclass 457 visa. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(aa) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(aa) permits cancellation if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that did not exist. The Tribunal was required to consider the applicant's admitted breach of his visa condition by working as a taxi driver, and whether this breach meant the grant of his subsequent visa was based on a false premise.

The Tribunal found that the ground for cancellation under s.116(1)(aa) did exist, as the applicant had indeed worked as a taxi driver in breach of his visa conditions. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal took into account the applicant's explanation that he worked as a taxi driver part-time to supplement his income because his sponsor, Raaz Pty Ltd, was underpaying him and requiring him to return a significant portion of his wages. The Tribunal noted the applicant's subsequent compliance with visa conditions since 2014, his long period of residence in Australia, his family ties, and the potential hardship cancellation would cause. Crucially, the Tribunal also considered that the Department had granted the applicant a further Subclass 457 visa in 2017, indicating a view that his circumstances were acceptable at that time.

For these reasons, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.