Garach (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Garach. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal found it had no jurisdiction to review the second applicant's cancellation. The applicant was nominated by Maral Modi Accountants Pty Ltd to work as an accountant. The sponsor notified the Department that the applicant ceased employment on 13 January 2017. A notice of intention to consider cancellation was issued, to which the applicant responded. Ultimately, the delegate cancelled the applicant's visa on 18 July 2017.

The legal issues before the Tribunal were 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. The visa was subject to condition 8107, which stipulated that if the visa holder ceased employment, the period of unemployment must not exceed 90 consecutive days. The Tribunal was required to determine if the applicant had complied with this condition.

The Tribunal found that the applicant ceased employment with her sponsoring business in August 2016, and the Department was notified of this cessation on 3 January 2017. It concluded that the period the applicant was not employed exceeded 90 consecutive days, thereby establishing a breach of visa condition 8107(3)(b) and satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while it could be guided by policy, it was not bound by it, referencing judicial authority that policy guidelines cannot extend beyond the wording of the legislation. The Tribunal gave significant weight to the fact that the purpose of the applicant's temporary work visa, which was to work for a specific sponsor in a skilled occupation, no longer existed.

Having regard to the findings and the circumstances of the case, the Tribunal was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling it. Consequently, the Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. The Tribunal reiterated that it had no jurisdiction with respect to the second applicant.