Gallagher (Migration)

[2021] AATA 2336

Gallagher (Migration) [2021] AATA 2336 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Gallagher

CASE NUMBER:  2013474

HOME AFFAIRS REFERENCE(S):          BCC2020/941644

MEMBER:Phoebe Dunn

DATE:8 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 08 April 2021 at 5:53pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – breached condition 8107– applicant ceased employment for more than 60 consecutive days – applicant continued to pursue employment – specialised skill set – impact of the COVID 19 pandemic –decision under review set aside

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa as the applicant had ceased employment for a period exceeding 60 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review with the Tribunal on 1 September 2020 and included a copy of the primary decision record with the application. The Tribunal has before it the Departmental file relating to the applicant in respect of the decision to cancel the visa. It also has before it the information submitted by the applicant to the Tribunal on review. The Tribunal has had regard to the material referred to in the delegate’s decision and other material before it on the Departmental file and the Tribunal’s file. The applicant was self‑represented in relation to the review.

4. The applicant appeared before the Tribunal on 4 March 2021 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of Government policy.

   Evidence at hearing

7. At the hearing of this matter, the applicant gave extensive oral evidence regarding his employment and visa history in Australia, consistent with written documentation and supporting evidence submitted to the Tribunal and on the Departmental file. He stated that he first came to Australia on Working Holiday visa and has worked in various positions as an electrician specialising in fire safety in Queensland, the Northern Territory, Western Australia and Victoria. He stated that he got his formal qualifications in Perth, Western Australia, with credits for prior work experience in Ireland. He stated that he has held various visas over the years and has always been compliant with his visa conditions, with the exception of condition 8107(3)(b) attached to his Subclass 457 visa that is before the Tribunal on review.

8. The applicant stated that he worked as an electrician specialising in electrical fire systems for the Firesafe Group, who sponsored him for his first Subclass 457 visa. He stated that the Firesafe Group purchased Geelong Fire Services in Victoria and he was asked to move to Melbourne to assist with the set-up of the fire safety side of the business. He stated that he worked for Geelong Fire Services full-time from early 2018 and had been involved in running one of the largest projects in Melbourne. He stated that he had an agreement with the business that they would sponsor him for his permanent residency and had been advised by his employer that they had lodged the nomination application. He stated that he became aware that they hadn’t yet lodged an application when his migration agent made enquiries as to the project. He then confronted his employer, who blamed it on another general manager of the business who had since left and promised to proceed to lodgement of the nomination. He stated that by this time, he no longer trusted them and decided to seek alternative employment and a different sponsor prior to resigning.

9. The applicant stated that he has always been open, honest and responsive with the Department and has always tried to do the right thing. He stated that he understood that when he resigned he would need to find new employment within the 60-day period and had taken steps prior to resigning to ensure he continued to meet this requirement. Having secured the promise of employment through a LinkedIn contact, he then resigned prior to Christmas 2019, with effect from 24 January 2020. He stated that, unfortunately, the employment that he believed he had secured prior to resigning fell through. He stated that he then secured employment with another company, Wormald Fire Solutions, in mid‑February 2020 and signed a contract of employment with them on 20 February 2020. He stated that they agreed to sponsor him, and he advised them that they would need to advertise his role for four weeks to satisfy the sponsorship requirements. He stated that they indicated they would use their own internal processes to do this. He stated that he regularly made enquiries with the company about the status of the application and became concerned when the person responsible wouldn’t return his calls. He stated that at this point he became very anxious as he was concerned to ensure he could obtain a new sponsor within the requisite timeframe and did not want to breach his visa conditions, and at this point he sought the help of a medical professional for anxiety and depression. He stated that some four to five weeks later they advised that they had made an error in the process and would need to advertise the role and get him to sign a new contract, but by that stage he had already exceeded the 60-day requirement, causing him to be in breach of his visa conditions. He stated that at this point he lost faith in them and didn’t consider the company to be aligned to his values and withdrew from the contract.

10. The applicant then stated that he considered moving back to Western Australia where he knew he had a job opportunity, but by this stage the COVID-19 pandemic prevented him from travelling. He stated that he was left with no option but to continue to seek work in Victoria, and found a position with Firelec Services Pty Ltd, through a friend who he had worked with before, and signed a contract on 29 May 2020. He stated that he has since lodged an application for a Subclass 189 Skilled permanent residency visa in November 2020 and was hopeful that this would be approved but there were extensive delays due to the COVID-19 pandemic. He stated that he now had employment with Epsilon Security who are keen to sponsor him and would provide evidence to the Tribunal to that effect.

11. The applicant stated that he had now lived in Australia for a long time and had nothing to return to in Ireland, particularly in the context of the COVID-19 pandemic, where unemployment is high and there is a dearth of affordable accommodation. He spoke of a difficult childhood beset with issues including an alcoholic parent, bullying and general hardship. He stated that he had very few friends and no support network in his home town and that all his friends were abroad. He noted that the skills he had acquired in Australia were not readily transferrable to Ireland as they had different standards and requirements and that his skills were extremely specialised and highly sought after in the Australian market. He stated that he had worked extremely hard in Australia and had been involved in projects worth over $5 billion. He stated that he had paid taxes and was able to support himself with his savings. He stated that he loved Australia and was hopeful that he could stay permanently. He noted that ‘electrician’ was still on the Australian Government’s critical skills list and he was filling an important role in a business where he was the only person working for the business who had the knowledge and skills to perform the role of fire technician (electrician).

12. He stated that he accepted that there were grounds to cancel his visa, but that he has always tried to do the right thing and had not tried to hide anything. He stated that when he resigned from employment with his Subclass 457 visa sponsor he believed he had an alternative sponsor and then when that fell through he did everything he could to ensure that he continued to comply with his visa conditions. He stated that the circumstances were compounded by COVID-19 and he had hoped that he would get some ‘leeway’ from the Department. He stated that he hoped that the Tribunal would exercise its discretion to overturn the cancellation.

    Post-hearing submissions

13. The applicant has submitted the following documents post-hearing in support of his application:

    a.    Copy of a contract of employment between the applicant and Myrtle Enterprises Pty Ltd t/a Epsilon Security Pty Ltd dated 6 November 2020, commencing 10 November 2020 providing for full-time employment as an Install Coordinator, Grade B, Grade 5 at a base rate of $55.68 plus superannuation and allowances as set out in the Myrtle Enterprises Pty Ltd t/a Epsilon Security Pty Ltd and ETU Enterprise Agreement 2017–2021;

    b.    Expression of Interest to the Department of Home Affairs for Skill Select Subclass 189 Skilled visa lodged on 7 December 2020;

    c.      ATO notice of assessment for FY2017, FY2018, FY2019 and FY2020;

    d.    Character reference from Dr Conor Kelly dated 14 March 2021 attesting to the applicant’s attributes as a ‘dependable, conscientious, honest, peace‑loving person who would make an excellent addition to the diverse Australian community’;

    e.    Reference letter from the owner of the Gipps Street Canteen dated 12 March 2021 on behalf of his friend, attesting to the applicant’s attributes as ‘honest, dependable and conscientious’;

    f.   Letter from a Director of the applicant’s current employer, Myrtle Enterprises Pty Ltd t/a Epsilon Security, dated 11 March 2021 providing background to the employer’s decision to sponsor the applicant for a Subclass 186 visa, noting that they had a freeze on recruitment, but they had not been able to fill his position and as such ‘it was decided at Management level, that his specialised skill set with Fire technology is crucial to the expansion of our Fire services, and outweighs the cost and effort of sponsorship’. The letter states that the applicant has worked for the business since November 2020, when they ‘started our first Fire job’ and he has a wealth of knowledge critical to the needs of their expanding business;

    g.    Current payslip from Epsilon Security for the period from 9 March 2021 to 15 March 2021 at an annual salary of $110,448 and an hourly rate of $59; and

    h.    Character reference from a neighbour of the applicant, Mr Jared Henshaw, attesting to his honest, trustworthy and genuine nature. In this letter, Mr Henshaw states that they met outside their apartment building one night when they discovered a man had fallen into a construction site next door to their building and they were the first responders, noting that his willingness to help and do the right thing is demonstrative of his good character. He states that they have developed a strong friendship since that time.

    Does the ground for cancellation exist?

    s.116(1)(b) – non-compliance with conditions

14. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa.

15. The applicant was granted a Subclass 457 (Temporary Work (Skilled)) visa on 16 February 2017 for a period of four years until 16 February 2021.

16. On 31 August 2020, a delegate of the Minister determined to cancel the visa under s.116(1)(b) on the basis that the holder had not complied with condition 8107(3) which requires that if the applicant ceases employment, the period during which the applicant does so must not exceed 60 days.

17. A notice of intention to consider cancellation (NOICC) was sent to the visa holder on 18 June 2020. In the decision record, the delegate noted that the applicant had been approved to work for the sponsor and that the sponsor had informed the Department that the visa holder had ceased employment with them on 24 January 2020, following his resignation from the position. The delegate noted that the applicant had then sought sponsorship with a new employer and has signed two contracts of employment and that the new sponsor had lodged a nomination application. The delegate noted that the applicant then withdrew from the process in May 2020 due to stress caused with delays in the process resulting in him seeking medical assistance and was subsequently diagnosed with stress and prescribed medication. This was supported by documentary evidence.

18. The delegate noted that, notwithstanding this, the applicant had not obtained employment within 60 days as required by condition 8107(3)(b), giving rise to the grounds for cancellation.

19. This issue was discussed at the hearing and has been dealt with in the applicant’s written submissions. The applicant concedes that there are grounds for cancellation and this issue is not in dispute. The applicant has made submissions to the Department and the Tribunal in respect of the exercise of the discretion not to cancel the applicant’s visa.

20. The Tribunal notes that the applicant ceased employment with the sponsor on 24 January 2020. While the applicant has been employed in various positions consistent with his nominated occupation since that time, and while the applicant obtained a new sponsor within the 60-day period, he subsequently withdrew from that process, putting the applicant in breach of condition 8107(3) attached to the applicant’s visa.

21. Following consideration of the evidence before it, the Tribunal is satisfied that the grounds for cancellation in s.116(1)(b) exists, on the basis of non-compliance with condition 8107(3)(b) of the applicant’s Subclass 457 visa.

22. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

23. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

24. The Tribunal notes that while it may be guided by policy, it is not bound to follow it.[1] Specifically, in this context, the Courts have held that while the PAM3 guidelines are an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, they cannot be elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2] Notwithstanding this, the Tribunal considers the PAM3 policy guidelines to be a useful starting point in respect of the discretion.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

    [1] See Brennan, J. in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Vishnumolakala v Minister for Immigration[2006] FMCA 1209; Alimi v Minister for Immigration & Anor[2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship[2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55])

25. Evidence before the Tribunal shows that the applicant first came to Australia on 23 June 2010 on a Subclass 417 visa (Temporary Working Holiday). He was then granted an extension to his Subclass 417 visas on 9 June 2011. Prior to this, he also held a Subclass 417 visa issued on 15 January 2009, which was not used to enter Australia.

26. While in Australia on the Subclass 417 visa, the applicant was granted a Subclass 457 visa to work as an Electrician (Special Class) (ANZSCO 341112) for Firesafe Detection Pty Ltd linked to a nomination approved on 8 October 2012, to meet a skills shortage in a nominated occupation that could not be filled by an Australian citizen or permanent resident. The applicant was granted a second Subclass 457 visa to continue working for the nominating business, Firesafe Detection Pty Ltd, linked to the nomination approved on 16 February 2017. On 6 March 2018, a new nomination was approved for the visa holder to work in the same nominated occupation for Geelong Fire Services Pty Ltd and the applicant worked for the business until 24 January 2020 when his resignation became effective.

27. At the hearing, the Tribunal discussed with the applicant the purpose of his travel to and stay in Australia. The applicant noted that he first came to Australia with his then girlfriend on a Working Holiday visa. The applicant advised that after a period of working in Queensland and a remote community in the Northern Territory and in Port Hedland in various roles, he travelled to Perth in Western Australia. There he obtained his formal qualifications as an electrician, with credits gained for prior work experience. He then returned home for a short period and came back to Perth on his own. The applicant stated that he then started working for Firesafe in Perth, who sponsored him for his first and second Subclass 457 visas. He stated that he subsequently moved to Melbourne at the request of his employer to help establish Geelong Fire Services and was granted a third Subclass 457 period in relation to this related employment. He stated that it was always his desire to never to return home and to make a permanent home for himself in Australia or another country such as New Zealand.

28. The Tribunal notes that the Subclass 457 visa is granted for a finite period with the expectation that the applicant would work in the nominated occupation for the sponsor for the term of the visa. The Tribunal notes that as a consequence of the applicant’s resignation, the applicant was no longer working for the applicant’s original sponsor. The applicant has provided evidence as to the circumstances that led him to breach his visa condition, his efforts to secure new employment within the 60-day period and the impact of the COVID‑19 pandemic on his capacity to travel to secure new employment.

29. Noting that the Subclass 457 visa is a temporary visa, the Tribunal gives this consideration some weight in favour of cancellation.

30. However, the Tribunal also notes the efforts of the applicant to address his non‑compliance and that his current employment is in the same occupation in respect of which he obtained his three Subclass 457 visas and that his current employer has commenced the process of sponsoring the applicant. A reference from the sponsoring business attests to the specialised nature of the applicant’s skills, his technical expertise and the indispensability of the applicant to the stability and growth of the business. In this respect, the Tribunal considers the applicant’s stay in Australia continues to be aligned with the intention of the cancelled visa, being to fill an ongoing skills shortage. The Tribunal gives this consideration some weight against cancellation.

    The extent of compliance with visa conditions

1. The Tribunal discussed with the applicant the extent of his compliance with his visa conditions. The applicant has advised that, with the exception of the matter before the Tribunal, the applicant has always complied with his visa conditions. There is no evidence before the Tribunal to suggest that the applicant has not otherwise complied with his visa conditions. The Tribunal accepts this evidence and give this consideration some weight against cancellation.

2. The Tribunal notes that as a consequence of the applicant’s resignation, the applicant was no longer working for the applicant’s original sponsor and that the act of resigning from his employment with his sponsor ultimately resulted in him breaching condition 8107(3)(b). As such, the lack of compliance with this condition was caused by the applicant and was not beyond his control. The Tribunal gives this consideration some weight in favour of cancellation.

3. The Tribunal also notes, however, that the COVID-19 pandemic impacted negatively on his capacity to continue to comply with his visa conditions or to ameliorate his non‑compliance as soon as possible. The Tribunal gives this consideration some weight against cancellation.

   The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

4. The applicant has provided evidence to the Tribunal of the psychological impact on the applicant as a result of the issues that led to his visa being cancelled and this was discussed at hearing. The applicant has also provided oral evidence about his difficult childhood and his desire to make Australia his permanent home.

5. At the hearing, the applicant spoke of friends and family members in Australia who would be impacted by a decision to cancel his visa, noting that he and his cousin have become very close and that she had some significant personal traumas and would be impacted psychologically by a decision to cancel his visa.

6. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a specified period. While there may be a prospect of permanent residence beyond that visa, this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of his resignation and subsequent failure to secure a new sponsor has caused him stress and psychological issues for which he has sought medical assistance. The Tribunal gives this consideration some weight against cancellation of the visa.

7. The Tribunal has also had regard to the applicant’s evidence regarding his childhood and the difficulties he would experience if he were to be required to return home. The Tribunal also notes that the current COVID-19 environment continues to make overseas travel difficult. The Tribunal gives this consideration some weight against cancellation of the visa.

   The circumstances in which ground of cancellation arose

8. The applicant has provided evidence as to the circumstances that led him to breach his visa condition, including that the applicant agreed to move to Victoria to assist with the establishment of a new business on the basis that the company would sponsor him for his permanent residency. He stated that when he discovered that they hadn’t lodged his permanent residency application, he lost faith in the company and that it did not sit well with his personal ethics. At this point, he pursued alternative employment.

9. He stated that he was aware of the requirement to obtain a new sponsor within the 60‑day period and had worked hard to ensure that he was not in breach of this condition. He stated that he thought he had secured new employment and a new sponsor prior to resigning, but that regrettably this fell through after he had resigned. He stated that he then successfully obtained employment with another business and commenced working for them and that they had agreed to sponsor him, but he was concerned with delays in lodgement of the paperwork, which caused him stress, resulting in him seeking medical treatment and withdrawing from the process as a consequence.

10. He stated that his subsequent efforts to rectify his breach of the condition were hampered by the COVID‑19 pandemic, preventing him from returning to Perth where he had been offered employment.

11. The applicant has also advised that he is currently working in his nominated occupation for a business in Victoria, Epsilon Security, which has agreed to sponsor him. The applicant has provided evidence of his employment and supporting evidence from his employer about their decision to sponsor him for permanent residency. The Tribunal accepts this evidence.

12. He stated that he worked hard for each of the businesses he had been involved in, contributing to many large-scale constructions making a positive contribution to the Australian economy. He stated that his skills are extremely specialised and highly sought after in the Australian environment and not readily transferrable to other countries due to different conditions, codes and standards that apply. On the basis of the material before it, the Tribunal accepts this evidence.

13. The Tribunal has also considered the impact of the COVID-19 pandemic on the applicant’s capacity to obtain a new sponsor within the 60-day period and to address his non‑compliance with his visa conditions and ameliorate the extent and impact of that non‑compliance. The Tribunal notes that at the time the applicant became non‑compliant with his visa conditions, it was not long before restrictions were imposed on travel in Victoria. The Tribunal notes further that at the time the visa was cancelled, the applicant was residing in Melbourne, Australia, which was subject to an extended lockdown period of over six months, which impacted on his capacity to travel within Australia and overseas, and to obtain a new sponsor. The Tribunal gives this consideration some weight against cancellation, notwithstanding that the applicant has been in breach of his visa conditions.

14. The Tribunal also notes that notwithstanding the cancellation, the applicant continued to pursue employment and a new sponsor in his nominated occupation with success, securing a new sponsorship which is in the process of being finalised, notwithstanding the exigencies of the COVID-19 pandemic. The Tribunal also notes that there continues to be a skills shortage in that occupation and that the applicant’s new sponsor and employer has provided material to the Tribunal in support of the applicant, noting his specialised technical skills, the need for the applicant to work in the nominated position and the considerations that led to them determining to sponsor the applicant, notwithstanding they had a freeze on hiring at the time. The Tribunal gives this consideration some weight against cancellation.

    Past and present behaviour of the visa holder towards the Department

15. The evidence before the Tribunal indicates that the applicant has always been cooperative with the Department and has not tried to hide anything from the Department. The Tribunal gives this consideration some weight against cancellation.

    Whether there would be consequential cancellations under s.140

16. There would be no consequential cancellations under s.140 of the Act. Accordingly, the Tribunal gives this neutral weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation, and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

17. The applicant currently holds a Bridging E visa. Due to the current restrictions on international travel caused by the COVID-19 pandemic, the applicant could apply to the Department for further Bridging visas to enable him to stay in Australia until such time as he is able to depart. The Tribunal has had regard to the fact that if the applicant fails to depart and does not hold a visa allowing him to remain in Australia, the applicant may be liable to be detained under s.189 of the Act or indeed removed under s.198 of the Act and he will be subject to s.48 of the Act limiting his options to apply for certain further applications for visas while onshore in Australia with the application of PIC 4013.

18. The Tribunal gives this consideration some weight against visa cancellation.

19. The Tribunal has also had regard to the possible impact of PIC 4014. If the cancellation is affirmed and the applicant is required to depart Australia, PIC 4014 may be enlivened in certain circumstances, preventing him from applying for a new visa within three years of departure unless certain criteria are met. In this case, the applicant’s Bridging E visa was granted within 28 days of the Subclass 457 visa being cancelled, and provided this continues to apply, the PIC 4014 risk factor will not be enlivened.

20. The Tribunal gives this consideration neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28])

21. There is no evidence before the Tribunal to suggest that any children will be impacted or that Australia would be in breach of its non-refoulement obligations in case of cancellation. The Tribunal gives neutral weight to this consideration.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

22. The Subclass 457 visa is not a permanent visa. The Tribunal gives neutral weight to this consideration.

    Any other relevant matters

23. At the hearing and in written submissions, the applicant has provided evidence of his expression of interest for a Subclass 189 Skilled visa which is yet to be determined. The Tribunal considers this to be demonstrative of the applicant’s intentions and efforts to secure a visa that would facilitate him remaining in Australia working in his nominated occupation. The Tribunal gives this some weight against cancellation.

24. The Tribunal also notes the evidence before it that the applicant is a valued employee with a specialised skill set that would be extremely difficult to replace, such that his current employer has determined to sponsor him for a permanent residency visa, notwithstanding that they have a current freeze on employment.

25. The Tribunal has considered all of the relevant factors and the circumstances of this case. The Tribunal notes that the actions of the applicant in resigning led to the applicant being in breach of his visa conditions. Notwithstanding this, the Tribunal considers that the applicant made a considerable effort to secure a nomination with an approved sponsor before the grounds for cancellation arose and continued to pursue another nomination notwithstanding he was in breach of his visa conditions. The Tribunal notes and has considered the impact of the COVID‑19 pandemic which hindered the applicant’s capacity to rectify the breach of his visa conditions. The Tribunal notes that the applicant has continued to work in his nominated occupation and that his current employer is pursuing a sponsorship of the applicant notwithstanding that they have a freeze on employment, on the basis of the value they place on the applicant and his specialist skills. The Tribunal notes that while the purpose of the Subclass 457 visa is intended to be temporary to fill identified skills shortages, the evidence before it is that the applicant continues to meet a skills shortage in the applicant’s nominated occupation. Accordingly, the Tribunal considers the applicant’s stay in Australia continues to be aligned with the intention of the cancelled visa, being to fill an ongoing skills shortage.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Phoebe Dunn
    Member