Don Liy Anage (Migration)

The Administrative Appeals Tribunal considered the case of Don Liy Anage, who sought review of a decision to cancel his Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of condition 8107(3)(b) of his visa. The applicant argued that his redundancy was a direct consequence of the COVID-19 pandemic's impact on the hospitality industry and that he was in the process of seeking permanent residency at the time the pandemic struck.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, notwithstanding the established ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to consider all relevant circumstances, including government policy, in determining whether to cancel the visa. The applicant conceded that the ground for cancellation existed but contended that the circumstances warranted a decision not to cancel.

The Tribunal acknowledged that the applicant had breached condition 8107(3)(b) by exceeding the 60-day limit for ceased employment. However, it found that the cancellation was not mandatory under section 116(3) of the Act. In exercising its discretion, the Tribunal had regard to the applicant's submissions and the Department's Procedures Advice Manual, noting that while policy could guide, it was not binding. Crucially, the Tribunal accepted that the applicant's redundancy was due to circumstances beyond his control, specifically the downturn in the hospitality industry caused by COVID-19. The Tribunal also noted that the applicant had been working as a sponsored skilled worker for four years and was eligible to apply for permanent residency, having taken steps towards this goal before the pandemic.

Consequently, the Tribunal concluded that the circumstances as a whole did not warrant the cancellation of the applicant's visa. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's subclass 457 visa.