Chang (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant. The dispute arose because the applicant had ceased employment for more than 90 consecutive days, thereby breaching a condition of their visa. The applicant also failed to secure a new sponsor within the prescribed timeframe. The decision under review was made by a delegate of the Minister, and the Tribunal was tasked with determining whether this cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with a condition of their visa, namely condition 8107, which stipulated that a visa holder must not cease employment for more than 90 consecutive days. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy, in deciding whether to exercise the power to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8107 of their visa by ceasing employment for more than 90 consecutive days without securing a new sponsor. The applicant conceded this breach. While the ground for cancellation was established, it did not mandate cancellation under section 116(3) of the Act. Consequently, the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the purpose of the Subclass 457 visa, which is to enable Australian businesses to sponsor skilled workers when local options are unavailable, and concluded that this purpose no longer existed given the applicant's cessation of employment and the expiry of the sponsor's nomination. The Tribunal also considered matters raised by the applicant and the Department's Procedures Advice Manual (PAM3), noting that while PAM3 provides guidance, it is not binding and cannot extend beyond the wording of the legislation.

Ultimately, the Tribunal was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling it. The Tribunal affirmed the decision to cancel the first applicant's visa. The Tribunal also noted that it had no jurisdiction with respect to any other applicants.