Ramil (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of a subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The visa was cancelled by a delegate of the Minister under s.116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had breached condition 8107(3)(b) by ceasing sponsored employment for a period exceeding 90 consecutive days. The applicant had sought review of this decision.

The primary legal issues before the Tribunal were whether the ground for cancellation, namely the breach of visa condition 8107(3)(b), was established, and if so, whether the discretion to cancel the visa should be exercised in all the circumstances. The Tribunal was required to consider the evidence presented by the applicant, including claims of unfair dismissal and ongoing efforts to secure new employment, against the legislative requirements for visa compliance.

The Tribunal found that the applicant had indeed ceased employment with his sponsoring employer on 30 September 2015 and that this period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under s.116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines, such as those in the Procedures Advice Manual (PAM3), could be a useful starting point, they were not legally binding and could not override the wording of the Act. The Tribunal considered the applicant's circumstances, including his efforts to find new employment and the fact that his visa would have expired shortly after the cancellation decision, but ultimately concluded that the reasons for cancellation outweighed the reasons for not cancelling the visa.

Consequently, the Administrative Appeals Tribunal affirmed the decision to cancel the applicant's subclass 457 visa.