VECHOOPARAMBIL KURIAN (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr. Vechooparamibil Kurian's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was initiated by the Minister under section 116 of the Migration Act 1958, specifically on the ground that the applicant had ceased to have a genuine intention to perform his nominated occupation or that the position itself was not genuine, as prescribed by regulation 2.43(1)(kb) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(g) and regulation 2.43(1)(kb) were made out. This required the Tribunal to assess the applicant's genuine intention to perform his nominated occupation as a restaurant manager and the genuineness of the associated position, considering the applicant's response to the Notice of Intention to Consider Cancellation.

The Tribunal found that the applicant had provided a comprehensive submission addressing the allegations. The applicant's evidence indicated he was required to work inordinate hours, exceeding 65 hours per week, and was pressured to pay his employer $50,000 for a pathway to permanent residency. Furthermore, he was allegedly asked to perform duties beyond his nominated occupation, such as a kitchen hand and chef, and was threatened with visa cancellation if he did not comply. The Tribunal also noted that the employer's allegations against the applicant appeared unsubstantiated and untrue, particularly after the applicant ceased employment. Given these circumstances, the Tribunal was not satisfied that the ground for cancellation existed.

Consequently, the Tribunal set aside the decision to cancel Mr. Vechooparamibil Kurian's Subclass 457 visa and substituted a decision not to cancel it.