Fan (Migration)

This matter concerned the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the first applicant. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of visa condition 8107. The second applicant's visa was also cancelled, but the Tribunal found it had no jurisdiction in relation to that applicant. The decision was made by Amanda Upton, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the decision to cancel the first applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was justified, and if so, whether the discretion to cancel the visa should be exercised in the circumstances. The Tribunal was required to determine if the ground for cancellation existed and, if it did, to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that the first applicant had indeed breached visa condition 8107 by ceasing employment for more than 60 consecutive days. However, the Tribunal then considered the exercise of its discretion. It noted that while it could be guided by policy, such as that found in the Department’s Procedures Advice Manual (PAM3), it was not bound by it, as judicial authority has established that these guidelines are administrative and cannot elevate beyond the wording of the legislation. In exercising its discretion, the Tribunal took into account the applicant's submissions and evidence, including the disruption caused by COVID-19 restrictions to his transition to a new position in an associated business. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant’s Subclass 457 visa. The Tribunal explicitly stated it had no jurisdiction with respect to the second applicant.