Eroles (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 482 - Temporary Skill Shortage visa. The applicant's visa was subject to condition 8607, which stipulated that the visa holder must not cease employment for a period exceeding 60 consecutive days. The Minister's delegate had formed the view that the applicant had breached this condition. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with condition 8607 by ceasing employment for more than 60 consecutive days. If this ground was established, the Tribunal then had to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8607 by ceasing employment for a period exceeding 60 consecutive days, a fact conceded by the applicant in his response to the notice of intention to consider cancellation. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's evidence concerning his employment circumstances. The applicant explained that his relationship with his foreman deteriorated due to alleged unfair treatment and verbal abuse, leading to his unhappiness and affecting his performance. He resigned from his position and subsequently found new employment in Emerald, Queensland, within approximately three weeks of arriving there. Considering these circumstances, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 482 - Temporary Skill Shortage visa.