Nguyen (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Skill Shortage (Class GK) visa, Subclass 482, held by the applicant, Mr. Nguyen. The dispute arose when Australian Border Force officers, during a site visit to the sponsoring employer, Waikerie New Land Pty Ltd (trading as New Land Bakery), observed the applicant preparing pizzas. This activity was considered by departmental officers to fall outside the nominated occupation of Baker and thus potentially breach a condition of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed. Specifically, the Tribunal had to ascertain if the applicant had failed to comply with condition 8607(1) of his visa, which mandates that the visa holder must only work in the occupation nominated in the application for the most recent Subclass 482 visa granted. The nominated occupation was Baker, and the observed activity of making pizzas was identified as a task associated with the occupation of Fast Food Cook.

The Tribunal reasoned that while the applicant admitted to preparing pizzas, and accepted that this inadvertently breached the visa condition as particularised, the employer sponsor had explained that pizza preparation was considered part of the applicant's duties as a Baker. The Tribunal noted that the employer sponsor's approval and business requirements were relevant, and that the common practice by bakers across Australia might encompass such duties. Crucially, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(b) was made out, meaning the power to cancel the visa did not arise. Consequently, the Tribunal set aside the decision to cancel Mr. Nguyen's visa and substituted a decision not to cancel it.