Upton (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Upton. The cancellation was based on the ground that Mr. Upton had allegedly worked for businesses other than his sponsoring employer, A P EAGERS LIMITED, thereby breaching a condition of his visa.

The primary legal issue before the Tribunal was whether Mr. Upton had contravened condition 8107 of his Subclass 457 visa, which stipulated that he must work only in the nominated occupation and for his sponsor or an associated entity. The Tribunal was required to determine if the evidence presented established that Mr. Upton had worked for OZ-ELIQUID PTY LTD, a business distinct from his sponsor, and if such work constituted a breach of his visa conditions.

The Tribunal considered evidence including payment transactions and correspondence indicating Mr. Upton's involvement with OZ-ELIQUID PTY LTD. However, it also took into account that this work was for a short period, that Mr. Upton continued to work for his sponsor, and that he had assisted a friend without financial benefit. Weighing these factors, the Tribunal concluded that, in the circumstances of the case, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Upton's Subclass 457 visa.