Pandatuan (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by Mr. Pandatuan. The delegate had cancelled the visa under s.116(1)(b) of the *Migration Act 1958* (Cth) on the basis that Mr. Pandatuan had breached visa condition 8107(3)(b) by ceasing employment for a period exceeding 60 consecutive days. Mr. Pandatuan had lodged a spouse visa application and was granted a bridging visa after his Subclass 457 visa was cancelled.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) was made out, and if so, whether the visa should be cancelled in the exercise of the Minister's discretion. Specifically, the Tribunal had to assess if Mr. Pandatuan had failed to comply with visa condition 8107(3)(b), which mandates that the period of cessation of employment must not exceed 60 consecutive days.

The Tribunal found that Mr. Pandatuan ceased employment with his sponsoring business on 30 April 2020 and that this period of unemployment exceeded 60 consecutive days, thereby satisfying the ground for cancellation under s.116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while it could be guided by policy documents such as the Procedures Advice Manual (PAM3), it was not bound by them, as they are administrative guides and cannot elevate beyond the wording of the legislation. The Tribunal gave significant weight to the fact that the purpose of the Subclass 457 visa, which is to enable a business to sponsor a skilled worker when an Australian cannot be found, no longer existed after Mr. Pandatuan ceased working for his sponsor.

Having considered all the circumstances, including the applicant's submissions and the purpose of the visa, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. Accordingly, the Tribunal affirmed the decision to cancel Mr. Pandatuan's Subclass 457 visa.