Mohammed (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 breached condition 8607 of his visa, which required him to cease employment if his sponsor was no longer approved. The Department of Home Affairs had cancelled the applicant's visa on this basis. The applicant contended that the breach was beyond his control, as the sponsor's approval had been cancelled, and subsequently reinstated. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa should be cancelled, considering the discretionary power available to it.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding the existence of a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal considered various factors relevant to this discretion, including the purpose of the applicant's stay, his compliance with visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal found that the ground for cancellation, namely the breach of condition 8607, arose because the applicant's sponsor's approval was cancelled by the Department. The Tribunal accepted that this situation was beyond the applicant's control. Crucially, the sponsor subsequently appealed this decision and was reinstated as an approved sponsor, thereby remedying the circumstances that led to the potential cancellation. The Tribunal placed significant weight on the fact that the applicant had otherwise complied with his visa obligations since 2016, had a compelling need to remain in Australia to work in his field, and that cancellation would cause him significant financial and personal hardship.

Given these considerations, particularly the fact that the circumstances leading to the breach were beyond the applicant's control and had been remedied, the Tribunal was satisfied that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted it with a decision that the visa should not be cancelled.