Ascone (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ascone. The dispute arose because the applicant ceased employment with his sponsoring business for a period exceeding 90 consecutive days, which constituted a ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed failed to comply with condition 8107(3)(b) of his visa, as he ceased employment on 8 August 2016 and remained unemployed for more than 90 consecutive days. This satisfied the ground for cancellation under section 116(1)(b). The Tribunal then considered its discretionary power to cancel the visa. While acknowledging the applicant's submissions, including a workplace injury that temporarily incapacitated him, and his subsequent establishment of his own tilling business, the Tribunal noted that the purpose of a Subclass 457 visa is for temporary skilled work sponsored by an Australian business. The applicant's decision to remain in Australia and start his own company, rather than seeking employment with a new sponsoring business, was not considered sufficient to warrant a referral to the Minister or to prevent cancellation.

The Tribunal affirmed the decision to cancel the applicant's visa. It noted that while it could be guided by policy, such as that found in the Department's Procedures Advice Manual (PAM3), it was not bound by it, as judicial authority has established that these guidelines are administrative aids and cannot override the legislation. The Tribunal concluded that the circumstances presented did not justify exercising its discretion to set aside the cancellation.