Duffy (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 482 (Temporary Skill Shortage) visa was cancelled. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which contravened a condition attached to their visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with condition 8607 of their visa, which stipulated that employment must not cease for more than 60 consecutive days. If this ground for cancellation was established, the Tribunal then had to consider whether to affirm the delegate's decision to cancel the visa, taking into account all relevant circumstances and exercising its discretion.

The Tribunal found that the applicant had indeed failed to comply with condition 8607, as their employment had ceased on 2 December 2020, and no further employment had been established. The Tribunal noted that the applicant had not provided any response to the Notice of Intention to Consider Cancellation or any further information to the Tribunal. While acknowledging that policy guidelines, such as those in the Department’s Procedures Advice Manual (PAM3), could be a useful starting point, the Tribunal reiterated that such guidelines were not binding and could not go beyond the wording of the legislation. The Tribunal gave significant weight to the fact that the applicant's purpose for remaining in Australia no longer aligned with the purpose of the temporary work visa, and there was no compelling need for the applicant to remain in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa.