1517696 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 visa held by an applicant. The dispute arose when the Minister decided to cancel the applicant's visa under section 116 of the Migration Act 1958 (Cth). The Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(a) of the Act were made out. This section permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the ground for cancellation under section 116(1)(a) was established because the applicant's employment with the sponsoring employer, Ausray Industries Pty Ltd, had ceased due to the company's closure. This meant the factual basis upon which the visa was granted no longer existed. However, the Tribunal then considered its discretion, noting that while no specific matters were mandated for consideration, it had regard to departmental procedures and the applicant's circumstances. The Tribunal found that despite concerns about the applicant's evidence regarding his employment and financial matters, the applicant had a new, approved nomination for a Welder position, indicating his skills were still in demand.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.