Shrestha (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Shrestha. The Minister had initiated cancellation proceedings on the ground that the visa holder had ceased employment with his sponsor and had not resumed employment within the prescribed 60-day period, thereby breaching a condition of his visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107 of his visa, which mandates that a visa holder must not cease employment with their sponsor for more than 60 consecutive days without the visa being subject to cancellation. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances, including submissions made by the applicant.

The Tribunal found that the applicant's sponsor had served him with a termination letter on 30 August 2017, alleging misconduct. Despite the applicant's submission that he was under the impression his employment was still active and that he had been instructed to take leave rather than formally terminated, the Tribunal was satisfied, on the information before it, that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. In considering its discretion, the Tribunal noted the limited information provided by the applicant regarding his circumstances and potential hardship, despite opportunities to do so. It found that the applicant had not complied with his visa conditions and that while some hardship might result from returning to Nepal, there was insufficient evidence to give significant weight to this factor.

Consequently, the Tribunal affirmed the decision to cancel Mr. Shrestha's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.