Bukhari (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Skill Shortage (Class GK) visa (subclass 482). The applicant had breached a condition of his visa by ceasing employment with his approved standard business sponsor for a period exceeding 60 consecutive days. The Administrative Appeals Tribunal was required to determine whether to set aside the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant's circumstances warranted the exercise of discretion to set aside the visa cancellation. This involved considering factors such as the purpose of the applicant's stay in Australia, his compelling need to remain, and whether there were any matters beyond his control that contributed to the breach. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal acknowledged that the applicant's purpose for holding the visa was to work for a specific sponsor, and that establishing a business or becoming self-employed was not the intended use of the subclass 482 visa. However, the Tribunal found that the applicant had demonstrated genuineness in his attempts to secure a new sponsor, despite the significant impact of the COVID-19 pandemic on his efforts. The Tribunal noted the applicant's evidence of seeking alternative employment, registering an Australian Business Number and business name, and his stated desire to pursue further studies in Australia, indicating a compelling need to remain. The Tribunal concluded that the circumstances, including the pandemic's impact and the applicant's proactive steps, were beyond his control.

Consequently, the Tribunal set aside the decision under review and substituted it with a decision to remit the matter to the Department for reconsideration of the cancellation decision.