Ke (Migration)

This matter concerned an application for review of a decision to cancel the first applicant's Subclass 407 (Training) visa. The applicant had resigned from his employment as a Trainee Technician due to workplace bullying and subsequently applied for a Subclass 408 visa. He also requested the cancellation of his Subclass 407 visa. The Department issued a Notice to Consider Cancellation (NOICC) on the basis of this request. The applicant responded to the NOICC, detailing the workplace issues and his inability to return to his home country due to the COVID-19 pandemic, and his intention to work in the meat industry. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether cancellation was appropriate in the circumstances.

The Tribunal considered the provisions of section 116 of the Migration Act 1958 (Cth) and regulation 2.43 of the Migration Regulations 1994 (Cth) regarding visa cancellation. It accepted that the applicant had been employed as a Trainee Technician and had resigned due to workplace bullying and safety concerns. The Tribunal noted the applicant's request for cancellation of his visa and the subsequent NOICC. In its reasoning, the Tribunal weighed the circumstances as a whole, including the applicant's explanation for his actions, his inability to return to his home country due to the pandemic, and his desire to work in a critical sector to address labour shortages.

The Tribunal concluded that, in light of all the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the first applicant's Subclass 407 visa. The Tribunal also noted that it had no jurisdiction with respect to the second named applicant.