Sodhi (Migration)

This matter concerned the review of a decision by the Department of Home Affairs to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Sodhi. The applicant had been granted the visa on 23 August 2016, valid for four years, based on a nomination by Woodstock Hospitality Pty Ltd. The Department initiated cancellation proceedings after being advised that the applicant had ceased employment with the sponsoring business on 20 January 2019.

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, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with subclause (3)(b) of Condition 8107 of his visa, which requires that if the holder ceases employment, the period of unemployment must not exceed 90 consecutive days. The Tribunal also considered the applicant's submissions regarding financial hardship, a new employment offer, and the cessation of trading by his sponsoring business, as well as relevant government policy.

The Tribunal found that the applicant had indeed breached Condition 8107 as he had been unemployed for more than 90 consecutive days from 20 January 2019. While acknowledging the applicant's submissions concerning the sponsoring business's financial difficulties, his reliance on migration agent advice, and his intention to secure new employment, the Tribunal weighed these factors against the purpose of the Subclass 457 visa. The Tribunal noted that the visa's purpose was to enable a business to sponsor a skilled worker when an Australian could not be found, and this purpose had ceased to exist given the applicant's prolonged unemployment. Although the Tribunal accepted that the applicant would suffer financial and emotional hardship, it also considered that he had family support and would likely find employment in India. Ultimately, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons against it.

The Tribunal affirmed the Department's decision to cancel the applicant's Subclass 457 visa.