Magsalay (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Skill Shortage (Class GK) visa, subclass 482. The applicant had ceased employment with their sponsoring employer, Euro Image Smash Repairs Smart Pty Ltd, on 20 November 2019. The visa was subject to condition 8607, which stipulated that a visa holder must not cease employment for a period exceeding 60 consecutive days. The Tribunal, presided over by Amanda Upton, was tasked with determining whether the grounds for cancellation existed and, if so, whether to exercise discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8607 of their visa by ceasing employment for more than 60 consecutive days. If this 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, including government policy as outlined in the Department's Procedures Advice Manual (PAM3).

The Tribunal found that the applicant had indeed breached condition 8607, as they had ceased employment for a period significantly exceeding 60 days. However, the Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered the applicant's purpose for being in Australia, which remained consistent with the visa grant, and the fact that the applicant had secured a new full-time position with an approved standard business sponsor, Melbourne Collision Repair centre, consistent with their previous employment. Despite acknowledging the breach as significant, the Tribunal concluded that, on balance, the circumstances did not warrant visa cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's subclass 482 visa and substituted a decision not to cancel it.