Bowring (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration and Border Protection to cancel the subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Bowring. The applicant had previously held multiple working holiday visas and his employment with his original approved sponsor was terminated. He subsequently sought new employment and was willing to be sponsored by a new employer.

The Tribunal was required to determine whether the delegate's decision to cancel the applicant's visa was the correct and preferable exercise of discretion. This involved considering whether the applicant would have otherwise been entitled to the visa he applied for, and balancing various discretionary factors, including the applicant's efforts to find new employment, his departure from Australia to attend a family funeral, his current bridging visa status, and the willingness of a new employer to sponsor him for a role in a high-demand skill area.

The Tribunal reasoned that while policy guidelines, such as those in PAM3, are advisory and do not create legally binding requirements, they can inform the exercise of discretion. The Tribunal considered the applicant's proactive steps in seeking new employment and the support from a prospective sponsor. Balancing these factors against the reasons for cancellation, the Tribunal concluded that the correct and preferable exercise of its discretion favoured setting aside the cancellation decision.

The Tribunal set aside the delegate's decision to cancel the applicant's subclass 457 visa and substituted a decision not to cancel the visa.