Pradhan (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Mr Pradhan. The dispute arose from Mr Pradhan's alleged non-compliance with his visa conditions for an extended period, specifically a lack of genuine intention to work in his nominated occupation as a Chef. The Administrative Appeals Tribunal (AAT) was required to determine whether to affirm or set aside the cancellation decision.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel Mr Pradhan's visa, given that the ground for cancellation did not mandate it under section 116(3) of the Migration Act 1958 (Cth). The Tribunal considered various factors that might weigh in Mr Pradhan's favour, including losing his employment through no fault of his own, lacking funds for adequate advice, receiving unhelpful or misleading advice, voluntarily presenting himself to the Department, and making the application for review without full understanding of the consequences. However, the Tribunal also noted factors against exercising discretion, such as the extended period of non-compliance, the lack of any compelling or urgent need to remain in Australia, and Mr Pradhan's inability to secure other employment or a sponsor despite opportunities to do so.

The Tribunal reasoned that while Mr Pradhan had experienced difficulties and had cooperated with the Department, his non-compliance with his visa condition was substantial and had continued for an extended period. The Tribunal had granted Mr Pradhan multiple extensions of time to provide evidence of a new sponsorship or nomination, but no definite response or confirmed nomination was ever provided. Weighing all the circumstances, the Tribunal concluded that it was not persuaded to exercise its discretion not to cancel the visa.

Consequently, the Tribunal affirmed the decision to cancel Mr Pradhan's Subclass 457 visa. The Tribunal noted it had no jurisdiction with respect to the second applicant.