Louw (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Mr. Louw. The dispute arose when the Department of Home Affairs cancelled Mr. Louw's visa on the grounds that he had not complied with a condition of his visa. The cancellation of Mr. Louw's visa automatically led to the cancellation of other applicants' visas, but the Tribunal's jurisdiction was limited to the decision concerning Mr. Louw.

The primary legal issue before the Tribunal was whether the ground for cancellation existed, specifically whether Mr. Louw had breached condition 8107 of his visa, which required him to work only in the occupation listed in his most recently approved nomination. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr. Louw's visa was granted based on a nomination for an ICT Customer Support Officer position with Iris Contractors Pty Ltd. However, evidence indicated that Mr. Louw worked as a Branch Manager at a different location of the same company from December 2015 to October 2016. The Tribunal was satisfied that this constituted a breach of condition 8107(3)(a)(i) of his visa, thus establishing the ground for cancellation under s.116(1)(b) of the Migration Act 1958. Although this ground did not mandate cancellation, the Tribunal considered its discretion. It noted that while policy guidelines, such as those in the Procedures Advice Manual (PAM3), could be a useful starting point, they were not legally binding. The Tribunal gave significant weight to the fact that the purpose of the Subclass 457 visa, which was to enable a business to sponsor a skilled worker temporarily, no longer existed as Mr. Louw had ceased employment with his sponsor and was not currently sponsored.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Louw's visa, concluding that the reasons for cancellation outweighed the reasons for not cancelling it. The Tribunal also noted that it had no jurisdiction with respect to the other applicants whose visas were cancelled as a consequence of Mr. Louw's visa cancellation.