Mohammed (Migration)

This matter concerned an application to review the decision to cancel the Subclass 187 visa of the applicant, Mr. Mohammed. The applicant's visa had been granted on 6 July 2016, sponsored by Harrisons on Terrigal. The applicant had been employed by Harrisons on a part-time basis from January 2015 and then full-time from August 2015, prior to lodging his visa application. The applicant travelled to India on 22 June 2016 and was notified of his visa grant while overseas. He extended his stay to make arrangements for his family to travel with him to Australia by the required entry date of 2 September 2016, arriving on 29 August 2016. Upon attempting to resume his employment on 31 August 2016, he was informed that his employment had been terminated approximately five days after his visa was granted.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's Subclass 187 visa should be upheld. This required the Tribunal to consider the relevant factors pertaining to visa cancellation, including the circumstances surrounding the cessation of the applicant's employment and any other relevant considerations. The applicant contended that he was unaware of his termination until he attempted to return to work and that his employer provided no reasons for the dismissal. He also presented evidence suggesting his sponsoring employer had a history of poor employee relations, supported by media reports, and that the restaurant had since ceased trading.

In its reasoning, the Tribunal determined that significant weight should be given to the interests of the applicant's two infant Australian citizen children, particularly his son who suffers from substantial and ongoing medical problems that are well-managed in Australia. The Tribunal considered these policy considerations to be a primary factor in deciding whether to cancel the visa. The Tribunal found that the interests of these children would be substantially affected by a cancellation of the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 187 visa.