Kumar (Migration)

This matter concerned an appeal by Mr. Kumar against the cancellation of his Subclass 482 – Temporary Skill Shortage visa. The cancellation was based on the applicant breaching visa condition 8607, which mandates that a holder must not cease employment for more than 60 consecutive days. The applicant had ceased employment with his sponsoring employer on 5 November 2019, and at the time of the cancellation decision, had not secured new employment with an approved sponsor for an extended period. The Tribunal, presided over by John Cipolla, was tasked with reviewing this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had indeed failed to comply with visa condition 8607 and, if so, whether there were sufficient mitigating circumstances to warrant setting aside the cancellation decision. The applicant conceded that the ground for cancellation existed but argued against the exercise of discretion, citing the impact of the COVID-19 pandemic, his reliance on a pending sponsorship application with Masala Hut Indian Restaurant, and the hardship of returning to India.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established, as the applicant had ceased employment for more than 60 consecutive days without securing a new approved sponsor. However, the Tribunal then considered the exercise of discretion. It took into account the applicant's evidence regarding his qualifications, previous employment history, the circumstances of his termination, and the ongoing efforts to secure sponsorship with Masala Hut Indian Restaurant. Crucially, the Tribunal noted that the sponsorship application lodged by Masala Hut Indian Restaurant in May 2020 was eventually approved in January 2021. Considering all the circumstances, including the applicant's efforts to comply and the eventual approval of a new sponsorship, the Tribunal concluded that the cancellation decision should be set aside. The Tribunal also noted it had no jurisdiction concerning other unnamed applicants.