Thankamani Radhakrishnan Pillai (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Thankamani Radhakrishnan Pillai. The applicant's visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) on the ground that he had not complied with a condition of his visa, specifically condition 8107(3)(b), which stipulated that a visa holder must not cease employment for more than 60 consecutive days. The applicant's wife's visa was automatically cancelled as a consequence of the applicant's visa cancellation, pursuant to section 140(1) of the Act.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The applicant had ceased employment with his sponsoring business on 29 April 2020, and the period of unemployment exceeded 60 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). The Tribunal also considered the applicant's submissions regarding the circumstances of his cessation of employment and his subsequent efforts to find new employment, including two offers of full-time work.

In its reasoning, the Tribunal acknowledged that while it could be guided by policy, it was not bound by the Department's Procedures Advice Manual (PAM3) guidelines, as these were administrative guides and not legally binding. The Tribunal found that the applicant's failure to comply with condition 8107(3)(b) was established. Despite the applicant's submissions and the existence of employment offers, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. The Tribunal affirmed the decision to cancel the applicant's visa.