MacDonald (Migration)

The Administrative Appeals Tribunal considered the case of MacDonald, an applicant whose Temporary Skill Shortage (Class GK) visa, subclass 482, was subject to cancellation. The dispute arose because the applicant had ceased employment for more than 60 days, which constituted a ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The applicant argued that his cessation of employment was due to redundancy during the COVID-19 pandemic, that he had since secured new employment and sponsorship, and that cancelling his visa would cause significant hardship due to his shared care and financial support responsibilities for his children.

In its reasoning, the Tribunal acknowledged that the ground for cancellation under s 116(1)(b) was met. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. It had regard to the applicant's circumstances, including his long-standing ties to Australia since 2007, his role as a father to three children, and the significant distress and legal proceedings involved in regaining shared care of his children after their mother took them to New Zealand without his permission. The Tribunal also noted the applicant's compliance with visa conditions prior to his redundancy, his efforts to secure a new sponsor, and the substantial financial, psychological, and emotional hardship that cancellation would impose on him and his children, who spend 50% of their time in his care.

The Tribunal concluded that these factors weighed heavily in favour of the applicant. Consequently, the Tribunal set aside the decision under review and determined that the visa should not be cancelled.