2013528 (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first applicant, an Indian national. The cancellation was based on the fact that her standard business sponsor had its sponsorship cancelled and was barred from sponsoring for 12 months. The other applicants, comprising the first applicant's spouse and minor children, had their visas automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review their visa cancellations.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the first applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth), read with regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, was correct. This required the Tribunal to determine if the ground for cancellation, namely the sponsor's cancellation and barring under section 140M of the Act, was established. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, it should affirm the cancellation or set aside the decision.

The Tribunal found that the ground for cancellation was indeed established, acknowledging that the sponsor's standard business sponsorship was cancelled and the sponsor was barred for 12 months on 23 April 2019. This cancellation and barring were not solely due to the sponsor's ABN lapsing but also involved the sponsor being deregistered by ASIC, failing to update the Department on a prior visa holder's cessation of employment, and failing to provide particulars regarding the applicant's employment. Despite the ground for cancellation being made out, the Tribunal exercised its discretion not to cancel the applicant's visa. The Tribunal considered the applicant's long history in Australia, her continuous employment with the sponsor since 2014, her multiple pregnancies and births in Australia, and crucially, the significant medical condition of her second child, who required ongoing treatment and care for which the applicant was the primary caregiver. The Tribunal concluded that the potential hardship to the applicant and her family unit if the visa were cancelled outweighed the reasons for cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the first applicant's visa and substituted a decision not to cancel it. As noted, the Tribunal had no jurisdiction to review the visa cancellations of the other applicants.