Ali (Migration)

This matter concerned an application for review of a decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsor for a period exceeding 60 consecutive days, thereby breaching condition 8107(3)(b) of his visa. The applicant provided evidence that he had pursued further study and that the COVID-19 pandemic had impacted his former employer's business. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the cancellation decision should be affirmed.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to be satisfied that the applicant had not complied with a condition of his visa, specifically condition 8107(3)(b), which prohibits ceasing employment for more than 60 consecutive days. The applicant admitted to having been unemployed for a period exceeding 60 days. The Tribunal found that this constituted a breach of the visa condition and therefore the ground for cancellation was established.

Having found that the ground for cancellation existed, the Tribunal then considered whether to affirm the cancellation decision. 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 has held that such guidelines are administrative and cannot elevate beyond the wording of the legislation. The Tribunal considered the applicant's circumstances, including his pursuit of further study and the impact of the COVID-19 shutdown on his former employer. Despite these circumstances, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant’s visa.