Amardeep Singh (Migration)

This matter concerned an application for review of a decision to cancel the first applicant's Subclass 482 Temporary Skill Shortage visa. The applicant had ceased employment with his sponsoring employer, Orient, in January 2019, which constituted a breach of a visa condition. The applicant had subsequently sought new nominations for a visa, with his latest application by JD Bains still pending. The applicant was currently employed by JD Bains, who valued his skills and experience.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation decision. This required the Tribunal to weigh the substantial nature of the applicant's breach against various factors that weighed against cancellation. These factors included the applicant's demonstrated willingness to diligently search for new employment, his pending nomination application with JD Bains, and the potential impact of COVID-19 pandemic travel restrictions on his ability to return to Australia should he be required to depart.

The Tribunal acknowledged that the applicant's breach was substantial, as he had not secured a new nomination for a significant period. However, it found that the matters weighing against cancellation outweighed those favouring it. Crucially, the Tribunal considered the severe impact of international travel restrictions, particularly those affecting travel from India to Australia, which could prevent the applicant from returning to resume employment with JD Bains if his visa were cancelled. This, coupled with the fact that the applicant's 482 visa still had a considerable period to run and his current employment was valued, led the Tribunal to conclude that the cancellation decision should not stand.

The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the first applicant's Subclass 482 Temporary Skill Shortage visa. The Tribunal noted it had no jurisdiction concerning any other applicants.