Rahman (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 401 (Temporary Work (Long Stay Activity)) visa. The applicant had ceased employment with his sponsor, leading the Department to form the view that he no longer had a genuine intention to stay in Australia temporarily to carry out the work for which the visa was granted, a prescribed ground for cancellation under regulation 2.43(1)(ia) of the Migration Regulations 1994. The applicant was issued a Notice of Intention to Consider Cancellation, to which he responded, explaining his circumstances. The Administrative Appeals Tribunal (the Tribunal) conducted a hearing and ultimately considered whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the applicant's cessation of employment with his sponsor constituted a failure to maintain a genuine intention to stay in Australia temporarily for the purpose of his visa, thereby establishing a ground for cancellation under section 116(1)(g) of the Migration Act 1958. The Tribunal also had to consider the applicant's explanation for his absence from work and the circumstances surrounding his employment status in determining whether to exercise its power to cancel the visa.

The Tribunal reasoned that the applicant had taken approved long leave for compassionate reasons and, upon his return, was available to resume his duties. He had not been formally notified of any termination of his employment by his sponsoring employer, and he recommenced his duties on a voluntary basis. The Tribunal was not satisfied that the applicant had ceased to have a genuine intention to stay in Australia temporarily to carry out the work for which his visa was granted. Consequently, the Tribunal concluded that the ground for cancellation under section 116(1)(g) was not made out.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 401 visa. The Tribunal noted it had no jurisdiction with respect to other applicants.