1608803 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel a visa under section 116 of the Migration Act 1958 (Cth). The applicant sought to have the cancellation decision set aside.

The Tribunal was required to determine whether a prescribed ground for cancellation existed under regulation 2.43 of the Migration Regulations 1994, specifically whether the applicant's sponsor had their approval as a standard business sponsor cancelled or was barred under section 140M of the Act. If such a ground was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation existed, as the sponsor's approval as a standard business sponsor had been cancelled under section 140M(1)(a) and the sponsor was barred for two years. However, the Tribunal determined that the ground did not mandate cancellation under section 116(3). In exercising its discretion, the Tribunal considered the applicant's evidence, including that he moved his family to Australia for sponsored employment, was unaware of underpayment until late 2015, and was informed by the Department that he would have an opportunity to find a new sponsor if the business closed. The Tribunal found the applicant to be a persuasive and reliable witness, noting his desire to remain in Australia to provide continuity for his children's education and his intention to contribute to the Australian IT industry. These factors weighed in favour of not cancelling the visa.

The Tribunal set aside the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa and substituted a decision not to cancel it. The Tribunal stated it had no jurisdiction concerning other applicants.