Patel (Migration)

This case concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Ms. Patel. The dispute arose when the applicant's sponsoring employer, Global Traffic Management Pty Ltd, had its Standard Business Sponsorship agreement cancelled on 29 August 2014. The applicant continued to work for an associated entity, Global Traffic Australia Pty Ltd, for approximately two years without an approved sponsor. The Department of Immigration and Border Protection issued a notice of intention to cancel the applicant's visa, to which she responded, explaining her lack of awareness of the sponsorship cancellation and the business restructure. Ultimately, the delegate proceeded to cancel her visa. The applicant sought review of this decision before the Administrative Appeals Tribunal (AAT).

The AAT was required to determine whether the grounds for cancelling the applicant's visa existed and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the tribunal had to consider if the applicant had complied with the conditions of her visa, particularly condition 8107(3)(b), which requires a visa holder to cease employment for no more than 90 consecutive days if they stop working for their sponsor. The tribunal also had to assess whether the applicant's continued employment with an entity other than her approved sponsor constituted a breach of her visa conditions, thereby providing a ground for cancellation under section 116(1)(b) or (g) of the Migration Act 1958 (Cth).

The tribunal found that the applicant had breached condition 8107(3)(b) by ceasing employment with Global Traffic Management Pty Ltd when its sponsorship was cancelled on 29 August 2014, and subsequently working for an entity that was not her approved sponsor. This established a ground for cancellation under section 116(1)(g) of the Act. Although the cancellation was not mandatory, the tribunal then considered whether to exercise its discretion to cancel the visa. The tribunal acknowledged that while it could be guided by the Department's Procedures Advice Manual (PAM3), it was not bound by it. The tribunal considered the applicant's submissions that she was unaware of the sponsorship cancellation until receiving the notice of intention to cancel, that she continued to work at the same premises in the same role, and that her child was born in Australia. Despite these mitigating factors, the tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the cancellation was the correct and preferable decision.

The AAT affirmed the decision to cancel the first applicant's Subclass 457 visa. The tribunal also noted that it had no jurisdiction with respect to the other applicants, whose visas were automatically cancelled as a consequence of the first applicant's visa cancellation by operation of section 140(1) of the Act.