Williams (Migration)

The applicant, a national of the United Kingdom, held a Subclass 457 (Temporary Work (Skilled)) visa sponsored by Twisted Kids Pty Ltd. The delegate cancelled the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had not complied with visa condition 8107, which required him to work only in a position within the business of his sponsor or an associated entity. The applicant had been appointed as a director of Bickle Pty Ltd and had received payments from Eskimo Ice Pty Ltd, neither of which were associated entities of the sponsoring business. The Administrative Appeals Tribunal (AAT) reviewed this decision.

The AAT was required to determine whether a ground for cancellation existed under section 116(1)(b) or section 116(1)(g) of the Act, and if so, whether the visa should be cancelled in the exercise of discretion. The applicant's visa was subject to condition 8107, which stipulated that the holder must work only in a position within the business of the sponsor or an associated entity. The Tribunal considered evidence, including the applicant's own testimony, that he had worked for Bickle Pty Ltd, a business not associated with his sponsor. Furthermore, the sponsor's approval had been cancelled by the Department.

The Tribunal found that the applicant had breached visa condition 8107 by working for Bickle Pty Ltd, and that a ground for cancellation under section 116(1)(g) also applied due to the sponsor's de-registration. Although these grounds did not mandate cancellation, the Tribunal proceeded to consider whether to exercise its discretion. The Tribunal acknowledged that while it could be guided by the Department's Procedures Advice Manual (PAM3), it was not bound by it, as judicial authority indicated that such guidelines were administrative aids and could not override the legislation. The Tribunal gave significant weight to the fact that the applicant's original purpose for the visa – to work for the sponsoring business – no longer existed, as he had ceased employment with the sponsor and had not secured new sponsorship.

Having considered all the circumstances, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, and that affirming the cancellation was the correct and preferable decision. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.