Naqvi (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Business (Long Stay)) visa of the first applicant. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of section 140(1) of the Migration Act 1958 (Cth). The Tribunal determined it had no jurisdiction in relation to the second applicant as their visa cancellation was not a "decision" reviewable under the Act.

The primary legal issue before the Tribunal was whether the first applicant's visa should be cancelled under section 116(1)(b) of the Act, on the ground that the applicant had ceased employment for more than 90 consecutive days, thereby failing to comply with visa condition 8107(3)(b). The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the applicant's submissions and the Department's Procedures Advice Manual (PAM3) guidelines, while acknowledging that PAM3 guidelines are administrative and not legally binding.

The Tribunal found that the applicant had indeed ceased employment on 18 September 2015 and that this cessation exceeded 90 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal noted that the applicant's Subclass 457 visa was due to expire on 8 August 2016, and that the applicant had remained in Australia after the sponsoring business went into voluntary liquidation and had been unsuccessful in finding new employment as a cook. Despite acknowledging the applicant's circumstances, the Tribunal concluded that cancelling the visa was the correct and preferable decision.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. The Tribunal also stated that it had no jurisdiction with respect to the second applicant.