Pande (Migration)

This matter concerned an appeal by Mrs Pande, a national of Nepal, against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. Mrs Pande was granted the visa on 20 August 2014, with her employment as a hairdresser nominated by Ceylon Cut Pty Ltd. The Department of Immigration and Border Protection issued two Notices of Intention to Consider Cancellation (NOICC). The first NOICC, issued on 12 February 2016, cited advice that Ceylon Cut had been deregistered. Mrs Pande responded by providing evidence that the company's registration had been reinstated and that she and her colleagues continued to be employed and paid. The second NOICC, issued on 18 March 2016, referred to the cancellation of Ceylon Cut's business sponsorship approval. The Tribunal considered the grounds for cancellation under section 116 of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the decision to cancel Mrs Pande's visa should be upheld. This involved determining whether the grounds for cancellation under section 116 of the Act were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal noted that the Department's delegate had cancelled the visa under section 116(1)(b) for breach of a visa condition, rather than under section 116(1)(g) relating to the sponsor's circumstances. The Tribunal also had to consider the relevant circumstances and government policy in exercising its discretion, as outlined in the Department's Procedures Advice Manual.

The Tribunal reasoned that while a ground for cancellation under section 116(1)(b) may have existed, the cancellation was not mandatory. Therefore, the Tribunal was required to consider whether to exercise its discretion. The Tribunal had regard to Mrs Pande's background, including her studies in hairdressing and accounting in Australia, her family circumstances, and her efforts to secure new employment and sponsorship after the issues with Ceylon Cut arose. The Tribunal found that Mrs Pande had provided evidence of a new nomination application by MJK, which was pending, and that the circumstances surrounding the issues with Ceylon Cut were not entirely within her control.

Having considered all the evidence and circumstances, the Tribunal concluded that the factors favouring non-cancellation of Mrs Pande's visa outweighed those favouring cancellation. Consequently, the Tribunal set aside the decision to cancel Mrs Pande's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.