Pathak (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Pathak. The dispute arose after the applicant's sponsor, Narnarayan Sayona Pty Ltd, had its business sponsorship cancelled in October 2018, leading to the applicant ceasing employment with them. The applicant subsequently remained unemployed for more than 90 consecutive days, which is a ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth), specifically for failing to comply with visa condition 8107(3)(b).

The primary legal issue before the Tribunal was whether the applicant's Subclass 457 visa should be cancelled, notwithstanding the existence of a ground for cancellation. The Tribunal was required to determine if the circumstances warranted the exercise of discretion not to cancel the visa, considering all relevant factors. This involved assessing the reasons for the breach of the visa condition, the applicant's subsequent actions, and any mitigating circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established, as the applicant had ceased employment for more than 90 consecutive days following the cancellation of his sponsor's business sponsorship. However, the Tribunal then considered its discretion not to cancel the visa. It took into account that the applicant had received incorrect advice from a former migration agent, which led him to work for a company in breach of his visa conditions, causing him to cease that employment. Crucially, the Tribunal noted the applicant's efforts to find new employment, his successful engagement with a new sponsor in a regional area (Mudgee), and the significant difficulty in finding qualified chefs in that region. The Tribunal was satisfied that the applicant had made genuine efforts to rectify his situation and had established a new life in Mudgee with his family.

On balance, the Tribunal concluded that the circumstances of the case warranted the exercise of discretion not to cancel the applicant's visa. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.