Maratas (Migration)

This matter concerned an appeal by the applicant, Mr Maratas, against a decision by the Department of Home Affairs to cancel his Temporary Work (Skilled) (subclass 457) visa. The dispute arose from Mr Maratas ceasing employment with his sponsoring employer, which led to a breach of his visa conditions. The Administrative Appeals Tribunal (AAT) was required to consider whether to exercise its discretion to set aside the cancellation decision.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm or set aside the cancellation of Mr Maratas's visa. This involved assessing various factors relevant to the cancellation power, including the purpose of his stay in Australia, his compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal was also required to consider departmental guidelines, specifically the Procedures Advice Manual (PAM3), which outlines considerations for general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that there were no specific matters mandated by legislation to be considered in the exercise of its discretion. It gave significant favourable weight to the fact that Mr Maratas had secured a new sponsor and lodged a new nomination, although this had not yet been approved. The Tribunal also afforded some favourable weight to his otherwise satisfactory record, noting that apart from the breach in question, he had complied with his visa conditions. Furthermore, the Tribunal considered the significant hardship Mr Maratas and other Filipino bricklayers faced due to alleged unfulfilled promises regarding permanent residency and the precarious nature of their employment, which led them to seek alternative sponsorship. The Tribunal found that the employer's conduct created a crisis for the visa holders and their families.