Ali (Migration)

This matter concerned an application by Mr Ali for review of the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Mr Ali had requested the cancellation of his own visa, citing unlawful termination and dismissal from his employment. He had also applied for a Protection visa, which was pending. The Tribunal considered Mr Ali's mental health issues, his claims of discrimination and harassment, and his financial inability to pursue legal action in the Fair Work Commission.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel Mr Ali's Subclass 457 visa. This involved considering the discretionary power to cancel a visa, the purpose of Mr Ali's stay in Australia, and the circumstances surrounding his request for cancellation and subsequent employment situation. The Tribunal also noted, in the alternative, that Mr Ali's employment had ceased more than 60 days prior to the cancellation, which would have provided grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) for failing to comply with a visa condition.

In its reasoning, the Tribunal acknowledged that while policy documents from the Department of Home Affairs were not binding, they provided relevant considerations for the exercise of discretion. The Tribunal independently assessed the material before it, noting that Mr Ali had initially arrived in Australia to study and was later granted the Subclass 457 visa to fill a skills shortage. His employment ended on 16 August 2018, and he requested visa cancellation on 9 November 2018. Despite his mental health issues and claims of discrimination, Mr Ali had secured a Bridging E visa with work rights and had been employed since February 2019. The Tribunal concluded that, considering all circumstances, the visa cancellation should be affirmed.