Leach (Migration)

This matter concerned an appeal by a visa holder against the cancellation of her Temporary Skill Shortage (Class GK) visa, Subclass 482. The dispute arose because the applicant ceased employment for more than 60 consecutive days without an approved nomination from a new employer. The applicant contended that she was unaware of the refusal of her new employer's business nomination application, having relied on her employer and their agent to manage the necessary paperwork. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the Minister's discretion to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) should be exercised. This required the Tribunal to first determine if the ground for cancellation, namely the breach of visa condition 8607(5) by ceasing employment for more than 60 days, was made out. If the ground was established, the Tribunal then had to consider all relevant circumstances, including government policy and the specific facts of the applicant's case, to decide whether cancellation was appropriate.

The Tribunal found that the ground for cancellation was indeed established, as the applicant had ceased employment for longer than the permitted 60-day period without an approved nomination. However, in exercising its discretion, the Tribunal considered several mitigating factors. These included the applicant's genuine lack of awareness regarding the nomination refusal, her reliance on her employer and their agent, and her subsequent proactive steps to rectify the situation once informed. The Tribunal also took into account the applicant's compelling need to remain in Australia due to her qualifications not being recognised in her home country, her lack of family support there, her established relationship with an Australian citizen partner serving in the defence force, and the hostile work environment she had left. Furthermore, the Tribunal noted that the applicant's current employer's nomination had since been approved, and that she was employed in an area of genuine skill shortage.

On balance, the Tribunal concluded that the factors favouring the non-cancellation of the visa outweighed those favouring cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa.