Badiola (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Temporary Skill Shortage (Class GK) visa, Subclass 482, was subject to cancellation. The dispute arose because the applicant ceased employment with his sponsoring employer for a period exceeding 60 consecutive days, a breach of a visa condition. The applicant had subsequently gained further employment with a different sponsor.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The specific ground for cancellation was the applicant's failure to comply with condition 8607(5) of his visa, which stipulated that the period of cessation of employment must not exceed 60 consecutive days.

The Tribunal found that the ground for cancellation did exist, as the applicant had indeed ceased employment for longer than the permitted period. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It took into account the applicant's personal circumstances, including his financial obligations and family responsibilities, and importantly, that he had secured new employment with a different sponsor, Luss Engineering, which had obtained nomination approval for him. The Tribunal gave significant weight to the fact that the applicant's purpose of working in Australia continued to be met through this new employment.

Ultimately, the Tribunal concluded that, considering all the circumstances, particularly the applicant's current employment and the approved nomination, the visa should not be cancelled. The decision under review to cancel the applicant's Subclass 482 visa was set aside, and a decision was substituted not to cancel the visa.