Khan (Migration)

This matter concerned the judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted for the applicant to work as a production manager for Alpine Valley Flour Mill Pty Ltd. The delegate of the Minister cancelled the visa under s.116(1)(b) of the Migration Act 1958 (Cth) on the grounds that the applicant had breached condition 8107(3)(a)(i) of his visa by not working solely in the nominated occupation of production manager, but instead performing duties as a machinery and stationary plant operator and engaging in building work.

The primary legal issue before the court was whether the AAT had erred in affirming the delegate's decision to cancel the applicant's visa. Specifically, the court was required to determine if the AAT had correctly applied the law in finding that the applicant had breached a condition of his visa and, if so, whether the exercise of discretion to cancel the visa was lawful and reasonable, considering all relevant circumstances. This included assessing whether the AAT had properly considered the applicant's submissions and evidence, and whether it had correctly interpreted and applied relevant legislation and policy guidelines.

The AAT, in its decision, found that the applicant had indeed breached condition 8107(3)(a)(i) by performing duties other than those of a production manager, including installation of machinery and building work, during the period before the mill commenced production. The Tribunal acknowledged that while it could be guided by policy, it was not bound by the Department's Procedures Advice Manual (PAM3), as judicial authority indicated these guidelines were administrative and could not elevate beyond the wording of the legislation. Having found the ground for cancellation established, the AAT then exercised its discretion, concluding that the reasons for cancelling the visa outweighed the reasons for not cancelling it, and therefore affirmed the delegate's decision.