Souza Dos Santos (Migration)

This matter concerned an application for review of a decision to cancel the Subclass 408 (Temporary Activity) visa of the applicant, Mr. Souza Dos Santos. The visa had been granted for the purpose of work as an Entertainer or Variety Artist for a specific sponsor, AUSTRALIAN NATIONAL AND INTERNATIONAL CIRCUS MANAGEMENT PTY LTD. The Department of Home Affairs had formed the view that the applicant had ceased employment with the sponsor and was working for another employer, leading to the consideration of visa cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(ia) of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant had ceased to have a genuine intention to stay temporarily in Australia to carry out the work for which the visa was granted, as required by r 2.43(1A) of the Regulations. This ground for cancellation arises if the Minister is satisfied that the visa holder did not have, or has ceased to have, such a genuine intention. The Tribunal was also required to consider whether, if the ground for cancellation was made out, the visa should be cancelled, exercising its discretion in light of all relevant circumstances.

The Tribunal found that the applicant had indeed ceased employment with the original sponsor and was working for another entity. However, the Tribunal accepted the applicant's evidence regarding the circumstances surrounding his departure from the sponsor. This included allegations of a "payback scheme" where performers were required to return a significant portion of their remuneration, and that working conditions were inconsistent with his contract, involving longer hours and performing tasks outside his nominated occupation. The applicant had also complained to Fair Work Australia. While acknowledging the breach of s 116(1)(g), the Tribunal gave significant weight to the reasons for this non-compliance, finding the applicant generally credible and his account supported by corroborative evidence.

Ultimately, the Tribunal concluded that, in light of the serious issues raised by the applicant concerning his employment with the original sponsor and the reasons for his cessation of that employment, the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's Subclass 408 visa.