1510375 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The visa had been cancelled by a delegate of the Minister under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had breached visa condition 8107(3)(b) by ceasing employment for a period exceeding 90 consecutive days. The applicant had been granted the visa in September 2013, valid until September 2017, and had ceased employment with his sponsoring employer in January 2014.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) was made out, and if so, whether the visa should be cancelled in the exercise of the Minister's discretion. Specifically, the Tribunal was required to determine if the applicant had indeed failed to comply with visa condition 8107(3)(b), which mandates that the period of cessation of employment must not exceed 90 consecutive days. If this ground was established, the Tribunal then had to consider whether, in all the relevant circumstances, the cancellation of the visa was the correct and preferable decision.

The Tribunal found that the applicant had ceased employment on 10 January 2014 and that this period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines, such as those in the Department's Procedures Advice Manual (PAM3), could provide a useful starting point, they were not legally binding and could not extend beyond the wording of the legislation. The Tribunal noted that the applicant had remained in Australia for over 30 months after ceasing employment without securing a new nomination from an approved sponsor, despite lodging a new nomination application in March 2015. Having weighed the reasons for cancellation against the reasons for not cancelling, the Tribunal concluded that the former outweighed the latter.

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