Rahman (Migration)

This matter concerned an appeal by Mr Rahman against the decision of the Department to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant's sponsoring employer ceased to exist, and he subsequently remained in Australia for over 16 months without an approved sponsor. He had applied for a student visa and found new employment, but the Tribunal was asked to determine whether these circumstances warranted the cancellation of his visa.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. This involved considering whether the applicant had ceased to be employed by the sponsor in relation to which the visa was granted, and if so, whether the visa should be cancelled having regard to all relevant circumstances, including government policy and the applicant's personal circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established because the applicant had ceased employment with his original sponsor. While the cancellation was not mandatory, the Tribunal considered the applicant's submissions regarding his new employment and the potential hardship of returning to Bangladesh. However, the Tribunal noted that the new employer had not lodged a nomination, and it was unclear if they were an approved sponsor with the capacity to do so. Furthermore, the Tribunal observed that the applicant's family resided in Bangladesh, and the applicant's desire to remain in Australia was not considered a compelling reason to override the cancellation decision, particularly given the temporary nature of the Subclass 457 visa.

Ultimately, the Tribunal affirmed the Department's decision to cancel Mr Rahman's Subclass 457 visa.