Morato (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), was subject to cancellation. The dispute arose because the applicant ceased employment for a period exceeding 60 consecutive days, a breach of condition 8107(3)(b) attached to their visa. The applicant sought review of the delegate's decision to cancel their visa, citing financial hardship and the impact of the COVID-19 pandemic.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess the applicant's compliance with the 60-day employment cessation condition and consider all relevant circumstances, including the applicant's submissions regarding financial hardship and the pandemic's impact, when deciding whether to affirm the cancellation.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) by ceasing employment for more than 60 consecutive days. While this ground for cancellation was established, it did not mandate cancellation under section 116(3). The Tribunal then considered its discretion, acknowledging that while policy guidelines like those in the Procedures Advice Manual (PAM3) are not binding, they provide a useful starting point. The Tribunal noted the applicant's unfortunate circumstances in losing employment due to the pandemic and their efforts to secure new employment, evidenced by a conditional employment contract. However, the Tribunal found no direct evidence from the prospective employer explaining the delay in lodging a nomination, which was a prerequisite for a new visa application. The Tribunal also considered the legal consequences of cancellation, including potential limitations on future onshore visa applications under section 48 of the Act, and concluded that these were intended consequences of the legislation and not manifestly unfair in the circumstances.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal found that the ground for cancellation was made out and, after considering the applicant's circumstances and the relevant legal framework, concluded that the exercise of discretion to cancel the visa was appropriate.