Manito (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first named applicant, Manito. The other applicants' visas had been automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of s.140(1) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) determined it had no jurisdiction with respect to these other applicants as their visa cancellations were not the result of a decision. The primary dispute for the AAT was whether the cancellation of Manito's visa was justified.

The legal issues before the Tribunal were whether the ground for cancellation under s.116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the visa holder has not complied with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which stipulated that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The Tribunal also considered the applicant's submissions regarding mistreatment by her employer and her efforts to find new employment.

The Tribunal found that Manito had ceased employment on 25 June 2018 and that the period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under s.116(1)(b). While acknowledging the applicant's claims of mistreatment and her attempts to secure new sponsorship, the Tribunal concluded that these factors did not outweigh the reasons for cancellation. The Tribunal noted that while it could be guided by policy, such as that found in the Department's Procedures Advice Manual, it was not bound by it, as judicial authority indicated these guidelines were administrative aids and could not elevate beyond the wording of the legislation.

Ultimately, the Tribunal affirmed the decision to cancel Manito's Subclass 457 visa, finding that the reasons for cancellation outweighed the reasons for not cancelling it. The Tribunal also reiterated that it had no jurisdiction concerning the other applicants whose visas were automatically cancelled.