Gallagher (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had breached condition 8107 by ceasing employment for more than 60 consecutive days. The applicant argued that he had continued to pursue employment and that the impact of the COVID-19 pandemic had affected his ability to secure new employment within the prescribed timeframe. The decision under review was made by the Minister, and the application for review was heard by the Tribunal.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, the applicant's Subclass 457 visa should be cancelled, notwithstanding the breach of condition 8107. The Tribunal was required to consider all relevant circumstances, including the applicant's efforts to secure new employment, his history of compliance with visa conditions, and any external factors that may have contributed to the breach. The Tribunal also considered the guidance provided in the Department's Procedures Advice Manual (PAM3), while acknowledging that such policy guidelines are not binding and cannot elevate beyond the wording of the legislation.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Act did not mandate cancellation. In considering the exercise of discretion, the Tribunal had regard to the applicant's extensive evidence detailing his specialised skill set as an electrician in fire safety, his long history of compliance with visa conditions since 2010, and his proactive steps to secure alternative employment. The Tribunal noted the difficulties encountered in securing new sponsorship, including the failure of prospective employers to adhere to sponsorship obligations and the unforeseen impact of the COVID-19 pandemic. The Tribunal concluded that, on balance, the circumstances of the case did not warrant the cancellation of the applicant's visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.