KHAN (Migration)

This matter concerned an application for review by Mr. Khan of the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Mr. Khan had applied for the visa based on sponsorship by his employer, Oberix Group Pty Ltd. However, he subsequently sought to withdraw his application, advising his employer by email that he wished to remain on his student visa. Despite this attempted withdrawal, the visa was granted. The visa was later cancelled on the grounds that Mr. Khan had breached condition 8107 by not being employed in a nominated position for more than 90 days. Mr. Khan sought a declaration from the Tribunal that the visa had not been validly granted and that the cancellation decision was invalid.

The primary legal issue before the Tribunal was whether it possessed the power to declare that the Subclass 457 visa had not been validly granted, and consequently, whether the cancellation decision was invalid. The Tribunal was also required to consider whether to exercise its discretion to set aside the cancellation decision, having regard to the circumstances of the case.

The Tribunal reasoned that it did not have the power to make declarations regarding the validity of a visa grant, as its review powers under Part 5 of the Migration Act 1958 (Cth) were limited to reviewing specific decisions. While a ground for cancellation existed, the Tribunal considered the exercise of its discretion. It noted the unusual circumstances, including Mr. Khan's attempts to withdraw the visa application and his lack of awareness of the visa grant until later. The Tribunal accepted that Mr. Khan had no genuine intention to work for the sponsoring employer at the time of his attempted withdrawal, and it appeared unfair that the cancellation might trigger a risk factor (PIC 4013) that could prevent future visa grants.

Consequently, the Tribunal set aside the decision to cancel Mr. Khan's Subclass 457 visa, substituting a decision not to cancel it. The Tribunal noted that Mr. Khan maintained he did not want the visa and that it did not have the power to declare the visa invalid, suggesting he might need to resolve this issue through other means.