Patel (Migration)

This matter concerned an appeal by Mr. Patel against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because Mr. Patel ceased employment with his sponsoring employer for a period exceeding 60 consecutive days, which contravened a condition of his visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether Mr. Patel had breached condition 8107(3)(b) of his visa by ceasing employment with his sponsor, AUSTKLEEN Pty Ltd, for more than 60 consecutive days. This condition stipulated that a visa holder could only work for their sponsor or an associated entity, and if employment ceased, the period of cessation must not exceed 60 days. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the purpose of the visa, the applicant's compliance, and any hardship that might result from cancellation.

The Tribunal found that the ground for cancellation was established because AUSTKLEEN Pty Ltd was deregistered on 21 October 2017, indicating that Mr. Patel's employment had ceased at least by that date. As his occupation was not exempt from the condition, and he had not been nominated by another approved sponsor, he had failed to comply with condition 8107(3)(b). In considering its discretion, the Tribunal noted that Mr. Patel's purpose for remaining in Australia was no longer aligned with his visa conditions. While acknowledging that cancellation might cause hardship, the Tribunal lacked specific information regarding the extent of hardship to Mr. Patel or his wife, and found no adverse information about his behaviour towards the Department.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Patel's Subclass 457 visa. The Tribunal also noted that the cancellation of Mr. Patel's visa would result in the consequential cancellation of his wife's visa under section 140 of the Migration Act 1958 (Cth), although the Tribunal stated it had no jurisdiction with respect to the second applicant.