Kelly (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of an applicant nominated by Top End Line Markers Pty Ltd for the occupation of Occupational Health and Safety Adviser. The dispute arose because the Department of Immigration and Border Protection was satisfied that the applicant had breached a condition of her visa by not working in the nominated occupation.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether the applicant had complied with condition 8107(3)(a)(i) of her visa, which mandates working only in the occupation listed in the most recently approved nomination. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant's duties, as described by both the sponsor and the applicant, did not fully align with the responsibilities of an Occupational Health and Safety Adviser as defined by ANZSCO. These duties included supervising traffic control staff, undertaking training, assisting with site monitoring and record-keeping, and performing tasks related to traffic management and general labouring. While the applicant spent approximately 50% of her time on OH&S issues, the remaining time was dedicated to other work, and the core responsibilities of the nominated occupation appeared to be managed by another individual. Despite this finding, the Tribunal decided not to cancel the visa. It reasoned that cancellation was not mandatory under section 116(3) and that, in exercising its discretion, it had regard to the applicant's intention to continue working in a health and safety role for a different company, Asphalt Company Australia. The Tribunal also considered the hardship to the sponsor, Asphalt Company Australia, which had lodged a new nomination under the permanent resident pathway and highlighted the difficulty in finding suitably qualified staff in the region.

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