Paniyadi (Migration)

This matter concerned an application to review the cancellation of the applicant's Temporary Skill Shortage (Class GK) visa, subclass 482. The applicant had ceased employment with Brennan IT Pty Ltd on 3 June 2020, exceeding the 60-day period permitted by condition 8607 of their visa. The Tribunal, presided over by Amanda Upton, was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant's failure to comply with visa condition 8607, which stipulated that a visa holder must not cease employment for more than 60 consecutive days, constituted a valid ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). If a 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 those outlined in the Department's Procedures Advice Manual (PAM3), while acknowledging that PAM3 guidelines are not legally binding.

The Tribunal found that the applicant had indeed breached condition 8607 by ceasing employment for over 60 days, thus establishing the ground for cancellation under section 116(1)(b). However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this decision, the Tribunal considered the applicant's circumstances, including the impact of the COVID-19 pandemic, a company restructure, the inability to travel overseas, and the applicant's subsequent interstate employment and financial hardship. The Tribunal noted that while PAM3 guidelines are not binding, they provide a useful framework for exercising discretion.

Consequently, the Tribunal set aside the decision to cancel the applicant's subclass 482 visa and substituted a decision not to cancel it. The Tribunal clarified that it had no jurisdiction concerning any other applicants.