LEE (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 401 (Temporary Work (Long Stay Activity)) visa. The applicant had been nominated by Sydney Sae Byuk Church Inc to work as a Religious Worker, and his visa was subject to Condition 8107, which required him to engage in the nominated occupation. The Minister initiated cancellation proceedings on the basis that the applicant had not worked for the nominator since October 2016, thereby breaching Condition 8107. The applicant responded by acknowledging he had not worked for the nominator and indicated issues with the church, but instead of providing details, he requested more time to remain in Australia to pursue a music program with another church.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's compliance with his visa conditions, his stated intentions for remaining in Australia, and the purpose of the Subclass 401 visa, which requires a genuine intention to stay temporarily to carry out the nominated occupation. The Tribunal also had to consider the consequential cancellation of the applicant's wife's visa and the impact of section 48 of the Act.

The Tribunal found that the applicant had indeed breached Condition 8107 by ceasing to engage in his nominated occupation. Furthermore, the Tribunal determined that the applicant's subsequent employment as a farm hand at a commercial poultry business, and his expressed desire to remain in Australia long-term, were inconsistent with the temporary nature and purpose of the Subclass 401 visa. The Tribunal concluded that the applicant did not have a genuine intention to stay temporarily to carry out the nominated occupation. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, noting that the consequential cancellation of his wife's visa and the impact of section 48 were intended outcomes of the legislation and did not outweigh the reasons for cancellation. The Tribunal also noted it had no jurisdiction regarding the second applicant.