Ozturk (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the alleged breach of visa condition 8107, specifically that the applicant had not commenced employment with the approved sponsor, H Salem & I Vardar & D Yilmaz, within 90 days of the visa being granted. The applicant's migration agent had requested an extension to respond to the Notice of Intention to Consider Cancellation (NOICC), which was granted. However, the agent inadvertently sent the response to an incorrect email address, meaning the Department did not receive it before making the cancellation decision.

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 established. This required the Tribunal to determine if the applicant had, in fact, breached the condition of commencing employment with the sponsor within the stipulated timeframe. The Tribunal also considered the circumstances surrounding the applicant's response to the NOICC and whether the Department had sufficient information to justify the cancellation.

The Tribunal found that while the Department acted appropriately based on the information before it, the applicant's migration agent had indeed attempted to respond to the NOICC within the extended timeframe. The failure to receive the response was due to an administrative error in sending the email to an incorrect address. Crucially, the Tribunal was not satisfied, on the evidence presented, that the ground for cancellation under section 116(1)(b) had been made out. The Tribunal noted that evidence such as wages deposited into a bank account and an ATO notice of assessment, along with the credible witness testimony, supported the applicant's claim of having commenced employment.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal clarified that it had no jurisdiction concerning any other applicants.