Biel (Migration)

This matter concerned the review of a decision to cancel the Subclass 482 Temporary Skill Shortage visa granted to the applicant, Ms Biel. The cancellation was based on the applicant's breach of visa condition 8607(5), which requires that a holder who ceases employment must not remain unemployed for more than 60 consecutive days. The applicant had ceased employment with her sponsoring business on 30 June 2020 and failed to secure new employment within the stipulated period. The Tribunal had jurisdiction to review the cancellation decision concerning Ms Biel, but not the consequential cancellation of her husband's visa, which occurred automatically by operation of law.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation of Ms Biel's visa, notwithstanding that the ground for cancellation, namely the breach of condition 8607(5), was established. The Tribunal was required to consider all relevant circumstances, including matters raised by the applicant and relevant policy guidelines, while acknowledging that such guidelines were not legally binding. The Tribunal also considered whether the cancellation would breach Australia's international obligations.

The Tribunal found that the applicant had indeed breached condition 8607(5) by exceeding the 60-day limit for unemployment. However, in exercising its discretion, the Tribunal had regard to the applicant's circumstances, including her redundancy and subsequent efforts to secure new employment. Crucially, the Tribunal noted that the applicant had found new employment with an approved sponsor, Vimwood Australia Pty Ltd, which had nominated her for a Subclass 482 visa, with that nomination pending a decision. The Tribunal was satisfied that Australia would not breach its international obligations, including those relating to family unity, by cancelling the visa.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. This decision was based on the applicant's proactive steps to secure new employment and a pending nomination by a new sponsor, which indicated a genuine intention to continue working in Australia under a valid visa. The Tribunal's decision meant that Ms Biel's visa was reinstated.