1601796 (Migration)

This matter concerned the review of a decision to cancel the visa of the first applicant, Ms. Kaur, a holder of a Subclass 457 Business (Long Stay) visa. The other applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the tribunal determined it had no jurisdiction over these consequential cancellations. The visa was granted in April 2013 and was valid until April 2017. The cancellation was based on the applicant ceasing employment with her sponsoring business, Just Chill café Pty Ltd, on 3 September 2015, and failing to secure new employment and a subsequent nomination within the prescribed 90-day period.

The primary legal issue before the tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which requires that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The tribunal was required to determine if the applicant had complied with this condition.

The tribunal found that the applicant ceased employment on 3 September 2015 and that this period 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, such as the Department's Procedures Advice Manual (PAM3), it was not bound by it, as judicial authority indicates these guidelines are administrative and cannot elevate beyond the wording of the legislation. Despite this, the tribunal considered the PAM3 guidelines a useful starting point and took into account the applicant's submissions and evidence, including her unfortunate loss of employment due to her previous employer closing down and the alleged negligence of her migration agent. However, the tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The tribunal affirmed the decision to cancel the first named applicant’s Subclass 457 visa. The tribunal also reiterated that it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled.