Mahajan (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant. The dispute arose when the applicant ceased employment with her sponsoring business, Salfa Alkubaisi T/AS Milano Hair and Beauty Boutique, on 27 September 2016. The Department of Immigration was notified of this cessation on 11 October 2016. A notice of intention to consider cancellation was issued, and the applicant responded in writing. Ultimately, the delegate decided to cancel the applicant's visa on 27 June 2017. The applicant sought review of this decision by the Tribunal. The visas of the applicant's husband and son were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal found it had no jurisdiction to review those cancellations.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's Subclass 457 visa under section 116(1)(b) of the Migration Act 1958 (Cth) was correct and preferable. This required the Tribunal to determine if the applicant had failed to comply with a condition of her visa, specifically condition 8107(3)(b), which mandates that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing the reasons for cancellation against any reasons for not cancelling it.

The Tribunal found that the applicant did not comply with condition 8107(3)(b) as she ceased employment on 27 September 2016 and the period of unemployment exceeded 90 consecutive days. The Tribunal acknowledged that while it could be guided by policy documents such as the Procedures Advice Manual (PAM3), it was not bound by them, as they are administrative guides and cannot elevate beyond the wording of the legislation. The Tribunal considered the applicant's circumstances, including her efforts to find new employment and her continued work on a bridging visa without work rights. However, it found that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. The Tribunal reiterated that it had no jurisdiction with respect to the other applicants whose visas were cancelled automatically.