SHARMA (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been employed by Nanotek Technologies Pty Ltd, trading as Indian Harbour Restaurant, which was approved as a standard business sponsor. The applicant was granted his 457 visa in February 2016. Subsequently, the Department of Immigration and Border Protection (DIBP) cancelled the sponsor's approval in October 2016, and a strike-off action was initiated against the sponsor. The DIBP then issued a notice of intention to cancel the applicant's visa, and a decision to cancel the visa was made in July 2017, on the grounds that the sponsor was cancelled or barred and the applicant had not responded to the notice or provided evidence of a new approved sponsor nomination.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's Subclass 457 visa was correct, considering the circumstances surrounding the sponsor's cancellation and the applicant's subsequent attempts to find alternative employment. The Tribunal was required to assess whether the applicant had demonstrated sufficient grounds to warrant the exercise of discretion not to cancel the visa, particularly in light of events beyond his control.

The Tribunal acknowledged that the applicant was not complicit in the events leading to the sponsor's cancellation, which were attributed to financial difficulties and the landlord taking possession of the premises. It was noted that the applicant had made attempts to find new employment and had sought assistance from his community and agents. However, the Tribunal found that there was little evidence before the Department to support the exercise of discretion not to cancel the visa, and the applicant had not adequately communicated his changed circumstances directly to the Department. While the Tribunal expressed some empathy for the applicant's situation, it placed little weight on his stated preference to remain in Australia as a compelling reason to retain the visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.