Kunwar (Migration)

This matter concerned the review of a decision to cancel the Subclass 482 (Temporary Skill Shortage) visa granted to the first applicant. The second applicant's visa had been automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to review this automatic cancellation. The first applicant arrived in Australia on 22 September 2019, and the sponsoring business, Adaptify Pty Ltd, notified the Department on 26 August 2020 that the applicant had not commenced employment. Following a notice of intention to consider cancellation and the applicant's response, the delegate cancelled the visa on 13 May 2021.

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 complied with condition 8607(4) of her visa, which required her to commence work within 90 days of arrival in Australia, given she was offshore when the visa was granted. The Tribunal also considered the applicant's submissions regarding her father's death and mental health challenges, and whether these circumstances warranted a decision not to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8607(4) as she had not commenced employment with the sponsoring business by the time of the hearing, which was well over 90 days after her arrival. Consequently, the ground for cancellation under section 116(1)(b) was satisfied. In exercising its discretion, the Tribunal acknowledged the applicant's personal circumstances but found that the purpose of the visa was to work, and the applicant had not commenced employment despite being in Australia for almost two years. The Tribunal also noted that the visa would have ceased on 16 July 2021 in any event. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 482 visa. The Tribunal further held that it had no jurisdiction with respect to the second applicant, whose visa cancellation was a self-executing consequence of the first applicant's visa cancellation under section 140(1) of the Act.