Baddam (Migration)

This matter concerned an appeal by an applicant against the decision of the Minister to cancel their Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with their sponsoring business and remained in Australia for over 90 days, seeking a new sponsor to continue their studies. The Administrative Appeals Tribunal, constituted by Member Antonio Dronjic, was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider whether the applicant had complied with the conditions of their visa, specifically condition 8107(3)(b), which stipulates that a visa holder must not cease employment for more than 90 consecutive days. The Tribunal also had to determine whether, having found a ground for cancellation, the exercise of discretion to cancel the visa was appropriate, taking into account all relevant circumstances, including government policy.

The Tribunal found that the applicant had ceased employment on 31 October 2016 and that this period exceeded 90 consecutive days, thereby breaching condition 8107(3)(b). Consequently, the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. In considering the exercise of discretion, the Tribunal acknowledged 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 held that these guidelines are administrative and cannot elevate beyond the wording of the legislation. Despite the applicant's stated intention to complete studies and efforts to find new employment, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.