Sierra (Migration)

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had been granted the visa on the basis of sponsorship by a standard business sponsor. The visa was subject to condition 8107, which requires a visa holder who ceases employment to not remain unemployed for more than 90 consecutive days. The applicant's employment with her sponsoring employer was terminated on 1 March 2016. Following notification of this cessation of employment, the Department of Immigration and Border Protection issued a Notice of Intention to Consider Cancellation, citing a potential breach of visa condition 8107. The applicant responded to this notice, and subsequently, the delegate decided to cancel her visa. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled, considering all relevant circumstances. The Tribunal also had to consider the applicant's submissions regarding her personal circumstances, including her relationship with an Australian citizen partner, her intention to apply for a permanent visa, and her financial support of her children residing overseas. The Tribunal was guided by the Department's Procedures Advice Manual (PAM3) but acknowledged that it was not bound by its contents, as judicial authority indicated that such guidelines could not extend beyond the wording of the legislation.

The Tribunal found that the applicant had indeed breached visa condition 8107 by ceasing employment and not securing new sponsorship within the prescribed 90-day period. Having satisfied itself that the ground for cancellation existed, the Tribunal then exercised its discretion regarding whether to cancel the visa. It considered the applicant's stated intention to apply for a Subclass 309 visa and her relationship with her Australian citizen partner, who expressed a strong desire for her to remain in Australia. However, the Tribunal concluded that there were no compelling reasons to depart from the delegate's decision to cancel the visa, noting that the applicant's intention to apply for a permanent visa did not negate the breach of her current visa conditions.

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The applicant was informed that she was not precluded from making a request for ministerial intervention following this decision.