1510341 (Migration)

The Administrative Appeals Tribunal considered a dispute between the Minister for Immigration and Border Protection and an applicant regarding the cancellation of the applicant's Subclass 457 visa. The Minister had cancelled the visa under section 116 of the Migration Act 1958 (Cth) due to a prescribed ground for cancellation under regulation 2.43 of the Migration Regulations 1994 (Cth), specifically relating to the cancellation of the standard business sponsorship of Sage Food Co Pty Ltd, the applicant's sponsor.

The Tribunal was required to determine whether a prescribed ground for cancellation existed and, if so, whether the discretion to cancel the applicant's visa should be exercised. The prescribed ground arose because Sage Food Co Pty Ltd, the applicant's sponsor, had its sponsorship status cancelled for three years. The Tribunal found that this constituted a prescribed ground for cancellation under section 116(1)(g) of the Act.

In exercising its discretion, the Tribunal considered various circumstances, including the purpose of the applicant's stay, the degree of hardship, and the circumstances in which the ground for cancellation arose. The Tribunal noted that Sage Food Co Pty Ltd was deregistered and that the findings leading to its sponsorship cancellation did not indicate any breach by the applicant. Crucially, the Tribunal found that the applicant was actively seeking redeployment and that a new nomination by P& J Kontoutis Family Trust for the position of Cook was approved prior to the Tribunal's decision. The Tribunal gave significant weight to this development, concluding that the applicant was once again in a position to perform in a nominated occupation.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision that the visa should not be cancelled. The Tribunal noted it had no jurisdiction concerning other applicants.