de Bruin (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Business (Long Stay)) visa of the primary applicant, Mr. de Bruin. The dispute arose because Mr. de Bruin ceased employment with his sponsoring business, Emerson Process Management Australia Pty Ltd, on 9 June 2016, and remained unemployed for a period exceeding 90 consecutive days, thereby contravening condition 8107(3)(b) of his visa. The visa of the second applicant was automatically cancelled as a consequence of the primary applicant's visa cancellation, and the Tribunal lacked jurisdiction to review that secondary cancellation.

The Tribunal was required to determine whether the grounds for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that Mr. de Bruin did not comply with the 90-day employment cessation condition, thus satisfying the ground for cancellation. However, the Tribunal then considered whether to exercise its discretion to cancel the visa, taking into account the circumstances of the case and the applicant's submissions.

In exercising its discretion, the Tribunal acknowledged that while the grounds for cancellation were met, the Department's Procedures Advice Manual (PAM3) guidelines, though not legally binding, provided a useful starting point. The Tribunal considered Mr. de Bruin's evidence that he was made redundant and subsequently engaged in a prolonged selection process for a new role within his sponsoring company. Crucially, the Tribunal accepted that Mr. de Bruin made genuine efforts to find alternative employment and had secured a position as an ICT Project Manager at Swinburne University, where he was described as a critical member of the team.

Having weighed the reasons for and against cancellation, the Tribunal concluded that the circumstances of the case, including Mr. de Bruin's genuine attempts to secure new employment and his current employment status, outweighed the reasons for cancelling his visa. Accordingly, the Tribunal set aside the decision to cancel Mr. de Bruin's visa and substituted a decision not to cancel it.