Yang (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa granted to the first applicant. The other applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to consider their cases. The first applicant's visa was granted in September 2016, valid until September 2020, and sponsored by Skycrest Constructions Pty Ltd. The applicant ceased employment on 4 June 2019, and a notice of intention to cancel her visa was issued on 3 July 2020, with the visa ultimately cancelled on 31 August 2020.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's visa should be affirmed. This required determining if a ground for cancellation existed under section 116 of the Migration Act 1958 (Cth) and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider whether the applicant had complied with condition 8107(3)(b) of her visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days.

The Tribunal found that the applicant did indeed cease employment on 4 June 2019 and that this period of unemployment exceeded 90 consecutive days, thereby establishing a ground for cancellation under section 116(1)(b) of the Act. In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines, such as those in the Department’s Procedures Advice Manual (PAM3), could be a useful starting point, they were not legally binding and could not go beyond the wording of the legislation. Having regard to all the circumstances, including the applicant's submissions and the purpose of her visa, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the Tribunal affirmed the decision to cancel the first named applicant’s Subclass 457 visa. The Tribunal also reiterated that it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled by operation of law.