Borgia (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant, Mr. Borgia. The dispute arose from the applicant's failure to comply with condition 8607 of his visa, which required him to work only for his nominating employer and to not cease employment for more than 60 consecutive days without securing a new nomination. The applicant had ceased working for his original employer on 3 April 2022 and remained unemployed and without an approved nomination for over two years, until his new nomination was approved on 29 April 2024, shortly before the visa cancellation decision.

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 legal issue was whether the applicant's prolonged period of unemployment and failure to secure a new nomination within the prescribed 60 days constituted a breach of his visa conditions, thereby providing a ground for cancellation. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including government policy and the applicant's personal situation.

The Tribunal found that the ground for cancellation under section 116(1)(b) was indeed made out, as the applicant had not complied with condition 8607 by exceeding the 60-day limit without a new nomination. However, the Tribunal determined that cancellation was not mandatory under section 116(3). In exercising its discretion, the Tribunal weighed the significant period of non-compliance against other factors. These included the applicant's long-term residence in Australia, the severe impact of COVID-19 lockdowns on his ability to travel and find work, the fact that his current employment as a Chef aligns with the objectives of the subclass 482 visa and the National Skills Priority List, and the evidence that he is a valued employee for his new nominating employer. The Tribunal concluded that these mitigating factors outweighed the period of non-compliance.

Consequently, the Tribunal set aside the decision to cancel the applicant's subclass 482 visa and substituted a decision not to cancel it.