VISUVANATHAN (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)), held by Mr. Visuvanathan. The dispute arose from the applicant's cessation of employment for a period exceeding 90 consecutive days, which is a ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) for non-compliance with visa conditions. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal found that the applicant had indeed ceased employment with his sponsor for more than 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). The applicant's visa condition required him to work only in the nominated occupation and not to cease employment for more than 90 days. Despite the applicant's claims of ongoing employment and disputes over unpaid wages, the Tribunal noted a lack of evidence to support these assertions after March 2017. The Tribunal also considered the applicant's stated desire to remain in Australia due to better employment opportunities compared to his home country, but found this did not constitute a compelling need to remain in Australia, particularly in the context of a temporary skilled worker visa program.

In exercising its discretion, the Tribunal weighed the circumstances, including the applicant's difficulties with his sponsor regarding long hours and underpayment of wages. However, it also noted that the applicant had not pursued formal action for unpaid wages, nor had he sought alternative employment until late 2017, declining an offer at that time. The Tribunal concluded that the integrity of the visa program relies on skilled workers filling temporary positions, not on individuals remaining in Australia due to superior economic prospects. Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.