Naeem (Migration)

This matter concerned an appeal by Mr. Naeem against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted based on sponsorship by Awan and Co Pty Ltd for the position of Cook. Subsequently, the sponsor's approval as a standard business sponsor was cancelled, and the sponsor was barred from making future applications for five years. Mr. Naeem had ceased working as a Cook for the sponsor and had since been employed as a taxi driver and cleaner. The Administrative Appeals Tribunal was required to determine whether the decision to cancel Mr. Naeem's visa should be affirmed.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) were made out. If so, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. This involved assessing the applicant's purpose for remaining in Australia and the potential hardship that cancellation might cause.

The Tribunal found that the ground for cancellation was established because the applicant's sponsor's approval had been cancelled, which was not disputed. In considering the exercise of discretion, the Tribunal noted that Mr. Naeem had not worked as a Cook for over five and a half years since his employment with the original sponsor ceased. His subsequent employment as a taxi driver and cleaner was inconsistent with the purpose of a 457 visa, which is to fill gaps in the Australian workforce. The Tribunal concluded that the purpose of his further stay in Australia was no longer viable and that he had no compelling need to remain.

Accordingly, the Tribunal affirmed the decision to cancel Mr. Naeem's Subclass 457 visa. The Tribunal also noted that it had no jurisdiction with respect to any other applicants.