Ahmed (Migration)

This matter concerned an appeal by the applicant, Mr Ahmed, against the cancellation of his Temporary Skill Shortage (Class GK) visa, subclass 482. The applicant had breached a condition of his visa by ceasing employment for a period exceeding 60 consecutive days. The dispute before the Administrative Appeals Tribunal was whether the cancellation decision should be set aside.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation of the applicant's visa, considering the circumstances that led to the breach. This involved assessing factors beyond the applicant's control, the impact of the COVID-19 pandemic on businesses and employment, and the applicant's genuine efforts to secure new sponsorship and employment in Australia. The Tribunal was required to weigh these factors against the fact that the applicant was no longer working in his nominated occupation for an approved sponsor.

The Tribunal reasoned that while the applicant had breached a visa condition, the circumstances surrounding this breach were largely beyond his control, exacerbated by the pandemic. The applicant had provided substantial evidence of his attempts to find new employment and sponsorship, and he expressed a strong desire to remain in Australia, where he had lived for 11 years. His wife held a critical role in the NSW Health Department and had a potential visa sponsorship opportunity. The Tribunal also noted the significant psychological and financial hardship the applicant and his family were experiencing due to the pandemic and the visa situation. Applying departmental guidelines, which suggest that visas should generally not be cancelled when the ground for cancellation arises from circumstances beyond the visa holder's control, the Tribunal gave considerable weight to these mitigating factors.

The Tribunal concluded that the weight of the circumstances favoured the applicant and ordered that the decision to cancel the applicant's visa be set aside.