Juhasz (Migration)

This matter concerned an application for review of a decision to cancel the first applicant's Subclass 482 (Temporary Skill Shortage) visa. The applicant had been granted the visa on 28 October 2019, with an expiry date of 28 October 2021, for the purpose of working as an Art Teacher (private tuition) for an approved sponsor, FC Art Pty Ltd. The dispute arose because the applicant did not commence employment within 90 days of the visa being granted, as required by visa condition 8607(4)(b). The Tribunal, presided over by Amanda Upton, was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, which relates to the holder's non-compliance with a visa condition. Specifically, the Tribunal had to assess if the applicant failed to commence employment within 90 days of the visa grant. If this ground was established, the Tribunal then had to exercise its discretion as to whether to cancel the visa, taking into account all relevant circumstances, including government policy and submissions made by the applicant.

The Tribunal found that the applicant had indeed failed to comply with visa condition 8607(4)(b) by not commencing employment within 90 days of the visa grant. The applicant acknowledged this non-compliance. The Tribunal then considered its discretion, noting that while it could be guided by policy documents such as the Department’s Procedures Advice Manual (PAM3), it was not bound by them, as they are administrative guides and cannot extend beyond the wording of the legislation. The Tribunal weighed the applicant's history of visa applications and grants, including previous student and dependent visas, and the fact that the Subclass 482 visa was granted for a specific skilled occupation. Crucially, the Tribunal noted that almost two years after the visa grant, there was no evidence that the applicant had obtained further employment or an alternative sponsor, and his purpose of travel was no longer consistent with the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa. The Tribunal stated it had no jurisdiction concerning any other applicants.