Rinku (Migration)

This matter concerned the review of a decision to cancel the first named applicant's Subclass 457 (Temporary Work (Skilled)) visa. The second named applicant's visa had been automatically cancelled as a consequence of the first applicant's visa cancellation. The review was heard by a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. This ground relates to prescribed grounds for cancellation, specifically regulation 2.43(1)(l)(iv) of the Migration Regulations 1994. The Tribunal also considered its jurisdiction concerning the second applicant, whose visa cancellation was a self-executing consequence of the first applicant's visa cancellation under section 140(1) of the Act.

The Tribunal reasoned that the basis for the cancellation of the first applicant's visa was no longer extant. This was because the sponsor's approval, which formed the basis for the cancellation, had been the subject of a review. On that review, the Tribunal had set aside the Department's decision and substituted a decision not to take certain actions under section 140M of the Act. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(g) existed, meaning the power to cancel the visa did not arise. The Tribunal also determined it had no jurisdiction regarding the second applicant as their visa cancellation was not a "decision" amenable to review.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant's Subclass 457 visa. The Tribunal further stated it had no jurisdiction with respect to the second named applicant.