1601762 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the cancellation of a Subclass 457 Business (Long Stay) visa granted to the first applicant. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction in relation to the second applicant as no decision was made regarding their visa. The first applicant's visa was cancelled by a delegate of the Minister on 9 February 2016, after the applicant ceased employment with Rising Group Pty Ltd on 1 September 2015 and was notified of the cessation on 19 October 2015. The applicant responded to a notice of intention to consider cancellation by stating that their employer was not paying them wages in accordance with their employment agreement and that this had been reported to Fair Work Australia and the Department of Immigration and Border Protection sponsorship monitoring unit in July 2015.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was correct and preferable. This required the Tribunal to determine if the applicant had failed to comply with a condition of their visa, specifically condition 8107(3)(b), which stipulated that the period of cessation of employment must not exceed 90 consecutive days. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that condition 8107 was attached to the applicant's visa and that the applicant had conceded ceasing employment with Rising Group Pty Ltd in December 2015. Crucially, the Tribunal found that the period of cessation of employment 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 it could be guided by policy, it was not bound by it, referencing judicial authority that policy guidelines do not elevate beyond administrative advisory guides. The Tribunal took into account the applicant's submissions and evidence, noting that the applicant had been in Australia for over nine months since ceasing employment and had been unable to secure new employment. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the cancellation was the correct and preferable decision.