Ankur (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa in December 2014, sponsored by Autocraft, and was subject to condition 8107(3)(b), which stipulated that he must not cease employment for more than 90 consecutive days. The Department of Immigration and Border Protection issued a Notice of Intention to Consider Cancellation in July 2018, after being notified by the sponsor that the applicant had not returned to work since August 2016, approximately 1.5 years prior. The applicant did not notify the Department of his cessation of employment.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's Subclass 457 visa should be affirmed. This required the Tribunal to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances. The Tribunal also considered the applicant's submissions regarding his prolonged period of unemployment, his failure to notify the Department, and other personal matters, including criminal charges and potential fatherhood.

The Tribunal found that the applicant had indeed ceased employment for a period exceeding 90 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b) of the Act. While acknowledging the applicant's submissions, including his educational background and the circumstances of his employment, the Tribunal concluded that these did not outweigh the reasons for cancellation. The Tribunal noted that while administrative policy guidelines, such as those in PAM3, could be a useful starting point, they were not binding and could not elevate beyond the wording of the legislation. After considering all relevant circumstances, the Tribunal determined that the reasons for exercising the discretion not to cancel the visa did not outweigh the reasons for cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.