Patel (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 482 (Temporary Skill Shortage) visa. The applicant, a primary sponsored person, had their visa granted on 10 October 2021, with an expiry date of 1 October 2025. The cancellation decision was made on 1 March 2024, following the cancellation of the applicant's Standard Business Sponsor (SBS), Astar Caterers Pty Ltd, and a five-year bar imposed on the company under s 140M of the Migration Act 1958 (Cth). The review was heard by Alison Mercer, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant's Subclass 482 visa should be cancelled, given that the ground for cancellation under s 116(1)(g) of the Act, specifically regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, had been established due to the sponsor's cancellation and bar. This required the Tribunal to consider the exercise of discretion in deciding whether to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(g) was made out, as the applicant's sponsor had been cancelled and barred under s 140M. However, this ground did not mandate cancellation under s 116(3). The Tribunal then considered the exercise of discretion, applying the policy outlined in the Department's Procedures Advice Manual (PAM3) concerning general visa cancellation powers. This involved weighing various factors, including the purpose of the visa holder's stay, compliance with visa conditions, the degree of hardship to the visa holder and family members, the circumstances in which the ground for cancellation arose, the visa holder's behaviour towards the department, potential consequences for other persons, mandatory legal consequences of cancellation, and Australia's international obligations, particularly the best interests of children. The Tribunal noted that matters should generally be weighed in favour of the visa holder.

Having considered all the circumstances, including the applicant's active search for a new employer, family health issues, and the emotional and financial hardship that cancellation would cause, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa. The Tribunal noted it had no jurisdiction concerning other applicants.