Ondong'a (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of condition 8607(5) of their visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances.

The Tribunal first considered whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. It found that the applicant had indeed breached condition 8607(5) by ceasing employment for more than 60 consecutive days. However, the cancellation of a visa under this section was not mandatory, requiring the Tribunal to then consider the exercise of discretion. In its assessment, the Tribunal had regard to the applicant's purpose for being in Australia, the steps taken to secure new employment, and the potential consequences of cancellation, including impacts on dependants and limitations on future visa applications.

In exercising its discretion, the Tribunal placed significant weight on the applicant's demonstrable efforts to obtain alternative employment following the unsatisfactory changes to their initial employment contract. The Tribunal noted that the applicant had secured new employment with an approved standard business sponsor, Great Ocean Road Resort, which had formally nominated them for a position. The Tribunal also considered the potential negative consequences of cancellation, such as the applicant becoming an unlawful non-citizen and the impact on dependants, finding these consequences would be manifestly unfair in the circumstances.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that while the ground for cancellation existed, the exercise of discretion favoured not cancelling the visa, given the applicant's proactive steps to rectify their visa status and the unfairness of the potential consequences.