Khan (Migration)

This matter concerned an application by Mr Khan for review of a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 21 July 2016, nominating an occupation as an ICT Business Analyst. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) on 4 February 2020, alleging the applicant had breached visa condition 8107(3)(b) by ceasing employment with his sponsor for more than 90 consecutive days. The applicant failed to respond to the NOICC within the prescribed period, and the delegate subsequently decided to cancel the visa.

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 made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had complied with visa condition 8107(3)(b), which stipulated that the period of cessation of employment must not exceed 90 consecutive days for a Subclass 457 visa holder. If the ground for cancellation was established, the Tribunal then had to consider all relevant circumstances, including government policy and matters raised by the applicant, in deciding whether to cancel the visa.

The Tribunal found that the applicant had indeed breached visa condition 8107(3)(b) by ceasing employment for more than 90 consecutive days. However, the Tribunal noted that this ground did not mandate cancellation under section 116(3) of the Act, allowing for the exercise of discretion. In considering this discretion, the Tribunal had regard to the applicant's submissions, including that his employment termination was due to an organisational restructure, beyond his control. The Tribunal also considered the applicant's attempts to regularise his immigration status, including a refused Student visa application and proposed future applications for Onshore Carer or Skilled visas, which would face significant delays if the cancellation was affirmed. While acknowledging the applicant had resided in Australia since 2008 and likely formed ties, the Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.