Hay (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant had ceased employment with their sponsor, T & R Driftwood Pty Ltd, on 5 January 2020, exceeding the 60-day period permitted under condition 8107(3)(b) of their visa. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation, to which the applicant responded, explaining that a potential new employer had delayed their nomination application due to the COVID-19 pandemic and associated restrictions. The Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had breached condition 8107(3)(b) of their visa by ceasing employment for more than 60 consecutive days. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the applicant's explanations and government policy. The Tribunal was guided by the Department’s Procedures Advice Manual (PAM3) but was not bound by it, as judicial authority has established that such guidelines are administrative aids and cannot override the legislation.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, as the applicant had indeed ceased employment for longer than 60 days. However, the Tribunal then considered its discretion. It placed significant weight on the applicant's contemporaneous documents demonstrating genuine steps to obtain alternative employment from January 2020. The Tribunal was satisfied that the delay in obtaining a nomination from a prospective employer, the Geelong Hotel, was solely due to the COVID-19 pandemic. Furthermore, the Tribunal noted that the applicant was not prevented by PIC 4013 from re-applying for a temporary work visa, as a Subclass 457 visa was not specified in the relevant schedule.

The Tribunal concluded that while the ground for cancellation was established, the consequences of cancellation in these circumstances would be manifestly unfair. The applicant's efforts to secure new employment were significantly hampered by the unprecedented impact of the COVID-19 pandemic, and there was evidence of a genuine intention by a prospective employer to nominate the applicant. Therefore, the Tribunal set aside the decision to cancel the applicant's visa.