1607552 (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant allegedly breaching visa condition 8107 by not working solely in the nominated occupation of Graphic Pre Press Trades Worker, but also performing duties as a Web Designer. The sponsoring employer, Indsoft Pty Ltd, had nominated the applicant for this occupation.

The AAT was required to determine whether the grounds for cancellation under section 116(1)(b) and section 116(1)(g) of the *Migration Act 1958* (Cth) were established. Specifically, the Tribunal had to assess if the applicant had failed to comply with visa condition 8107(3)(a)(i) by working outside the nominated occupation, and if a sponsorship bar imposed on Indsoft Pty Ltd provided another ground for cancellation under regulation 2.43(1)(l)(iv) of the *Migration Regulations 1994* (Cth).

The Tribunal found that the applicant did not exclusively work as a Graphic Pre Press Trades Worker, but also performed tasks associated with a Graphic Designer, thus satisfying the ground for cancellation under s 116(1)(b). Furthermore, the imposition of a sponsorship bar on Indsoft Pty Ltd satisfied the ground for cancellation under s 116(1)(g). However, as neither ground mandated cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. Applying principles from the Department's Procedures Advice Manual (PAM3) as a guide, and considering the applicant's continued need for employment at Indsoft and the temporary nature of the visa, the Tribunal concluded that the reasons for not cancelling the visa outweighed the reasons for cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.