Mehmood (Migration)

This matter concerned an application by Mr Mehmood for review of a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the ground that Mr Mehmood had ceased employment with his sponsor, which was a breach of condition 8107(3) of his visa. The sponsor's standard business sponsorship approval had also been cancelled by the Department.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if Mr Mehmood had complied with condition 8107(3), which stipulated that he must only work for his sponsor or an associated entity and that any cessation of employment must not exceed 60 consecutive days.

The Tribunal found that while the delegate was satisfied that Mr Mehmood had breached condition 8107(3)(b) by continuing to work for Jadoon Group Pty Ltd after its sponsorship was cancelled, this was based on a technical interpretation. Crucially, the Tribunal substituted the decision to cancel Jadoon Group Pty Ltd’s sponsorship with a decision not to cancel it, with retrospective effect. As Mr Mehmood had continued to work for his approved sponsor throughout the review process, the Tribunal concluded that he had not breached condition 8107(3)(b) at the time of its decision. Consequently, the Tribunal was not satisfied that the ground for cancellation existed, and the power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted it with a decision not to cancel Mr Mehmood’s visa.