Patel (Migration)

This matter concerned the review of a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by Mr. Patel. The applicant sought review of the Minister's decision to cancel his visa, which was affirmed by the Tribunal.

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 established. This section permits the Minister to cancel a visa if satisfied that the holder did not comply with a condition of their visa. Specifically, the Tribunal considered whether Mr. Patel had breached condition 3(a)(i), which required him to work only in the occupation listed in the most recently approved nomination, and condition 3(a)(ii)(B), which mandated that he work only in a position within the business of the sponsor or an associated entity.

The Tribunal found that Mr. Patel had breached condition 3(a)(ii)(B) as he had ceased employment with the sponsoring business in February 2018, and the business itself ceased operating in March 2018, predating the visa cancellation. While the Tribunal acknowledged that the business closure was outside Mr. Patel's control and that he had endeavoured to comply with his visa conditions, with only approximately 15% of his duties being outside the nominated occupation, it was satisfied that the ground for cancellation existed. The Tribunal then exercised its discretion, considering the circumstances as a whole, including the purpose of the visa, the extent of compliance, and the potential hardship to Mr. Patel, and concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Patel's Subclass 457 visa.