Tercero (Migration)

This matter concerned an application to affirm the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa granted to the applicant, who was nominated as a Medical Practitioner. The dispute arose when the applicant's registration as a medical practitioner with the Australian Health Practitioner Regulation Agency (AHPRA) was not renewed, leading to the cancellation of his visa. The decision was made by R. Skaros, a Member of the Tribunal.

The Tribunal was required to determine whether the grounds for visa cancellation under s 116 of the Migration Act 1958 (Cth) were made out, specifically whether the visa was granted based on a fact or circumstance that no longer existed. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant's Subclass 457 visa was granted partly on the basis that he held medical registration entitling him to practice as a medical practitioner in Australia, as required by cl 457.223C. Evidence from AHPRA indicated that the applicant did not meet the eligibility requirements for renewal of his limited registration and was removed from the register on 13 May 2016. Consequently, the Tribunal was satisfied that the ground for cancellation under s 116(1)(a) was established because the essential fact or circumstance on which the visa was granted no longer existed. In exercising its discretion, the Tribunal considered the applicant's inability to work in his nominated occupation since May 2016, his repeated failures in AMC clinical examinations, and the fact that the visa was granted on the premise of his continued eligibility to practice. Despite the applicant's stated desire to remain in Australia for his family and his belief in passing a future examination, the Tribunal concluded that the circumstances favouring cancellation outweighed those against it.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.