Perera (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first applicant, Ms. Perera. The dispute arose because Ms. Perera had ceased employment with her original sponsor for more than 60 consecutive days, a breach of a condition attached to her visa. The original employer had ceased trading, and Ms. Perera subsequently experienced periods of unemployment, including unsafe working conditions with a second employer and exploitative expectations from others, compounded by COVID-19 restrictions. The review was conducted by the Tribunal, presided over by Member Phoebe Dunn.

The primary legal issue before the Tribunal was whether the grounds for cancellation under s 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the Minister's discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Ms. Perera had breached visa condition 8107, which mandates remaining employed by an approved sponsor and limits non-employment periods to 60 consecutive days. If grounds for cancellation existed and cancellation was not mandatory, the Tribunal was required to consider discretionary factors.

The Tribunal reasoned that while Ms. Perera had breached visa condition 8107, the cancellation was not mandatory under s 116(3) of the Act. Consequently, the Tribunal proceeded to consider its discretion, taking into account all relevant circumstances, including government policy as outlined in the Department’s Procedures Advice Manual (PAM3), though noting it was not bound by such policy. The Tribunal considered the purpose of the Subclass 457 visa, Ms. Perera's efforts to secure new employment, the impact of COVID-19 restrictions, and the best interests of her Australian citizen child. It found that Ms. Perera's original employer ceased trading due to circumstances beyond her control, and she had made genuine efforts to find new employment, including securing a new employer with a genuine and supportive nomination application in progress, and her husband’s secure skilled work.

The Tribunal set aside the decision to cancel Ms. Perera's Subclass 457 visa and substituted a decision not to cancel it. However, the Tribunal held that it had no jurisdiction to review the visa cancellations of the secondary applicants, as their visas were automatically cancelled by operation of law under s 140(1) of the Act as a consequence of the primary applicant's visa cancellation, rather than by a specific decision.