Shah (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant, Mr. Shah. The dispute arose from the Department's decision to cancel Mr. Shah's visa on the grounds that he had ceased employment with his sponsoring employer, LH AUST Pty Ltd ATF LH AUST UNIT TRUST, for a period exceeding 90 consecutive days, thereby breaching condition 8107(3)(b) of his visa. The Tribunal was tasked with reviewing this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This required the Tribunal to determine if Mr. Shah had failed to comply with a condition of his visa, specifically condition 8107(3)(b), which mandates that a visa holder must not cease employment with their sponsor for more than 90 consecutive days. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including government policy and the potential hardship to the applicant.

The Tribunal found that the ground for cancellation was established, as the evidence indicated Mr. Shah ceased employment with his sponsor on 31 October 2017, and had not provided sufficient evidence to demonstrate he had secured new employment or a new nomination within the 90-day period. In considering the exercise of discretion, the Tribunal noted that the purpose of the 457 visa is to fill skilled shortages, and Mr. Shah's inability to secure a new nomination meant he was not fulfilling this purpose. While acknowledging the hardship Mr. Shah might face, including his long-term ties to Australia and aspirations for permanent residency, the Tribunal concluded that holding temporary visas does not guarantee permanent residency and that other migration pathways might still be available to him.

Ultimately, the Tribunal affirmed the Department's decision to cancel Mr. Shah's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to a second named applicant.