Sajwan (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by Mr Sajwan. The dispute arose after Mr Sajwan ceased employment with his original sponsor and subsequently lodged a new nomination application. The Tribunal was tasked with determining whether the grounds for visa cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether Mr Sajwan had breached a condition of his visa, specifically condition 8107, which requires the visa holder to not be unemployed for more than 90 consecutive days. The Tribunal also had to consider whether, even if a ground for cancellation existed, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr Sajwan had indeed failed to comply with condition 8107(3)(b) as he was unemployed for more than 90 consecutive days with his original sponsor. However, the Tribunal then considered the exercise of its discretion. It noted that the delay in approving the new nomination was due to circumstances beyond Mr Sajwan's control, including the sponsor's application for Standard Business Sponsorship (SBS) being refused and subsequently re-approved. The Tribunal also took into account that Mr Sajwan had lodged a new nomination within 90 days of ceasing employment, had maintained his health insurance, and that cancellation would cause significant financial and employment pressure on both him and his proposed new sponsor.

On balance, the Tribunal concluded that the circumstances warranted setting aside the decision to cancel Mr Sajwan's visa and substituted a decision not to cancel it.