1606390 (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the visa of Mr Benedict, the primary holder of a Subclass 457 visa sponsored by ATS (Asia Pacific) Pty Ltd. The dispute arose because Mr Benedict's sponsor had been barred from making future sponsorship applications for five years, which constituted a prescribed ground for visa cancellation under regulation 2.43(l)(iv) of the Migration Regulations 1994.

The Tribunal was required to determine whether the prescribed ground for cancellation existed and, if so, whether to exercise its discretion to cancel Mr Benedict's visa. The existence of the ground was established by the sponsor's barring under section 140M of the Act. The Tribunal then considered the exercise of its discretion, having regard to relevant circumstances including those outlined in the Department's Procedures Advice Manual.

In its reasoning, the Tribunal noted that while the ground for cancellation was made out, it did not mandate cancellation. The Tribunal considered Mr Benedict's response to the notice of intention to cancel, which included an application for a new sponsor that remained undecided. However, the Tribunal also took into account evidence regarding Mr Benedict's periods offshore and his inconsistent employment with his original sponsor. The Tribunal found that the length of time Mr Benedict was not employed, his apparent disregard for the immigration system by not working or seeking work during a significant portion of his visa validity, and his attempts to obscure his employment history warranted the cancellation of his visa. Despite his long-term presence in Australia and the birth of his children there, the Tribunal concluded that he had spent substantial time in Pakistan since the grant of his visa and did not accept that he or his family would suffer hardship or adverse treatment upon return.

Consequently, the Tribunal affirmed the decision to cancel Mr Benedict's Subclass 457 visa.