Tirath Ram (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Tirath Ram concerning the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose after the applicant's approved sponsor, Tushaan Enterprises Pty Ltd, had its sponsorship approval cancelled and was barred from future applications. This led to the refusal of new nominations for sponsorship by the applicant, resulting in his employment ceasing and him seeking alternative employment.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) was justified. This involved determining if a prescribed ground for cancellation existed, specifically under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, which applies when a Subclass 457 visa holder's sponsor has been barred. The Tribunal also had to consider whether, even if a ground for cancellation existed, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal reasoned that the ground for cancellation was established because the applicant's sponsor had been barred under section 140M of the Act. While the applicant argued he was a victim of his sponsor's non-compliance and had attempted to secure new sponsorship, the Tribunal found that two subsequent nominations had been refused, and there was no indication of a positive outcome. The Tribunal noted that the purpose of a Subclass 457 visa is to enable a business to sponsor a skilled worker, not for the visa holder to reside in Australia while seeking employment. Given that the applicant had not worked for an approved sponsor for over 17 months and his visa was nearing its expiry, the Tribunal concluded that the reasons for cancellation outweighed the reasons against it.

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