Boland-Quinn (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 482 (Temporary Skill Shortage) visa. The cancellation was based on the applicant's alleged breach of visa condition 8607(5), which stipulates that a visa holder who ceases employment must not remain unemployed for more than 60 consecutive days. The applicant had ceased employment with his sponsoring business, NJ Bricklaying Pty Ltd, on 15 January 2021, and continued to work as a subcontractor using his own ABN while attempting to find a new sponsor. The Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation existed. It found, based on the evidence including the applicant's oral testimony, that the applicant had indeed ceased employment with his sponsor on 15 January 2021 and that the period of unemployment exceeded 60 consecutive days, thereby breaching condition 8607(5). Having established that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 was made out, the Tribunal then turned to consider the exercise of its discretion regarding whether the visa should be cancelled. While acknowledging that policy guidelines, such as those in the Department's Procedures Advice Manual (PAM3), could provide guidance, the Tribunal noted that these were not legally binding and could not extend beyond the wording of the legislation.

In exercising its discretion, the Tribunal had regard to the circumstances of the case, including the applicant's submissions and evidence. The Tribunal found that the applicant's purpose for being in Australia was temporary skilled work as a bricklayer. Despite his efforts to find alternative sponsorship and his continued work as a subcontractor, the applicant had not secured employment with an approved sponsor who had nominated him for a position. Ultimately, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that cancelling the applicant's visa was the correct and preferable decision. The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 482 visa.