Bobo (Migration)

This matter concerned an application for review of a decision to cancel the first applicant's Temporary Skill Shortage (Class GK) (Subclass 482) visa. The applicant had ceased employment for a period exceeding 60 consecutive days, thereby breaching condition 8607 of his visa. The applicant explained that he left his employment due to stress and subsequently faced significant difficulties in finding new employment due to the onset of the COVID-19 pandemic. He eventually secured permanent employment as a Case Worker in New South Wales, and his new employer indicated an intention to lodge a nomination application. The Tribunal was asked to consider whether to exercise its discretion to cancel the visa, taking into account the potential hardship to the applicant and his family unit.

The primary legal issue before the Tribunal was whether to affirm or set aside the decision to cancel the applicant's visa, given that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. This involved a consideration of the applicant's circumstances, including the reasons for his unemployment, his efforts to secure new employment, and the impact of the COVID-19 pandemic. The Tribunal also had to consider the applicant's current employment situation and the potential for a future nomination application by his new employer.

The Tribunal reasoned that while the applicant had indeed breached condition 8607 by ceasing employment for more than 60 days, this ground did not mandate cancellation under section 116(3). The Tribunal then exercised its discretion, having regard to the applicant's evidence and the Department's Procedures Advice Manual. It accepted that the applicant's cessation of employment was due to stress and that his subsequent difficulties in finding new employment were significantly exacerbated by the unprecedented circumstances of the COVID-19 pandemic. The Tribunal noted the applicant's efforts to find work in his field and his willingness to relocate. Crucially, the Tribunal found that the applicant had secured ongoing permanent employment in a similar field and that his new employer intended to lodge a nomination application.

Consequently, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the first applicant's Subclass 482 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.