Sindhu (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Mr. Sindhu. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review this secondary cancellation. The primary dispute centred on whether the delegate had correctly cancelled Mr. Sindhu's visa under section 116(1)(b) of the *Migration Act 1958* (Cth) due to a breach of a visa condition.

The legal issues before the Tribunal were whether the applicant had failed to comply with condition 8107(3)(b) of his visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's submissions and evidence, including the circumstances surrounding his cessation of employment and subsequent attempts to secure new employment and sponsorship, in light of the relevant legislative provisions and established case law regarding the application of policy guidelines.

The Tribunal found that the applicant ceased employment on 18 June 2018 and that the period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). In exercising its discretion, the Tribunal considered the applicant's circumstances, including the sale of the sponsoring business, his efforts to find new employment, and the delay in his prospective employer obtaining sponsorship approval. However, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, noting that policy guidelines, while informative, were not binding and could not override the wording of the Act.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.