Horschig (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of a German national, the primary applicant, and his family members. The applicant had been sponsored by Playfair Roofing Pty Limited, whose sponsorship agreement was cancelled by the Department on 23 September 2020 because the company was no longer trading. The applicant was subsequently notified of the intention to cancel his visa and was given a period to find a new sponsor, but he did not respond to the Department's notice. The applicant sought review of the cancellation decision in the Tribunal.

The Tribunal was required to determine whether the ground for cancellation existed under section 116(1)(g) of the Migration Act 1958 (Cth), which relates to prescribed grounds for cancellation, specifically where the sponsor has been cancelled or barred under section 140M of the Act. If the ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation existed because the sponsor's agreement had been cancelled under section 140M due to ceasing to trade. Although this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted the absence of information regarding the applicant's compliance history, intentions, or the degree of hardship that cancellation might cause. While acknowledging that the sponsor's cancellation occurred during the COVID-19 pandemic and was likely beyond the applicant's control, and that there was no adverse information about the applicant's behaviour towards the Department, the Tribunal also noted a lack of information concerning the circumstances of the accompanying children and any mandatory legal consequences of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the primary applicant's visa, finding that based on the available information, the visa should be cancelled. The Tribunal stated it had no jurisdiction with respect to the other applicants.