Beranayarayara (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 408 (Temporary Activity) visa. The applicant, a citizen of Fiji, had been granted the visa based on employment with an approved sponsor, Australian Indigenous Ministries Inc. The dispute arose when the applicant ceased employment with his sponsor, leading to concerns about his genuine intention to stay temporarily in Australia for the purpose for which the visa was granted.

The Tribunal was required to determine whether the grounds for cancelling the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(ia) of the Migration Regulations 1994 were made out. Specifically, the Tribunal had to assess whether the applicant, despite being granted the visa, did not have, or had ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity for which the visa was granted. If the grounds for cancellation were established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant's cessation of employment with his sponsor, and his subsequent admission that he had requested consideration for a permanent visa, indicated that he no longer genuinely intended to remain in Australia temporarily for the purpose of his Subclass 408 visa. The Tribunal also noted evidence of non-compliance with visa conditions, specifically undertaking other work after ceasing with his sponsor to pay for his wife's medical expenses. While acknowledging the hardship that cancellation might cause, particularly concerning the wife's ongoing medical treatment in Australia for a heart condition, the Tribunal ultimately concluded that the grounds for cancellation were satisfied and that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 408 (Temporary Activity) visa.