Bishwokarma (Migration)

This matter concerned the review of a decision to cancel the Subclass 482 (Temporary Skill Shortage) visa held by the first applicant, Mr Bishwokarma. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of section 140(1) of the Migration Act 1958 (Cth). The Tribunal determined it had no jurisdiction to consider the second applicant's matter as no decision was involved in their visa cancellation.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel Mr Bishwokarma's visa under section 116(1)(b) of the Act was correct. This required the Tribunal to determine if Mr Bishwokarma had failed to comply with a condition of his visa, specifically condition 8607(5), which stipulated that any cessation of employment must not exceed 60 consecutive days. The Tribunal also considered whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case and relevant policy guidelines.

The Tribunal found that Mr Bishwokarma ceased employment on 3 July 2019 and that this period of unemployment exceeded 60 consecutive days, thereby breaching condition 8607(5). Consequently, the ground for cancellation under section 116(1)(b) was established. In considering the exercise of discretion, the Tribunal noted that while policy guidelines could be a useful starting point, they were not legally binding. The Tribunal found no evidence to suggest that cancelling the visa would breach Australia's international obligations, including non-refoulement obligations or obligations concerning the rights of children.

The Tribunal affirmed the delegate's decision to cancel Mr Bishwokarma's visa. It noted that while the applicant might become an unlawful non-citizen and liable for detention or removal if he did not depart Australia or obtain another visa, this was not a mandatory consequence of the cancellation decision. The Tribunal also acknowledged that section 48 of the Act would limit the types of visas Mr Bishwokarma could apply for while onshore, and he might need to depart Australia to apply for certain visas.