Park (Migration)

This matter concerned an application by Mr. Park for review of a decision by the Department of Home Affairs to cancel his Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). Mr. Park had ceased employment for more than 60 days, which is a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). Mr. Park contended that the cessation of employment was due to circumstances beyond his control, specifically an unfair dismissal and the subsequent impact of COVID-19 restrictions on his ability to find new employment. The Tribunal was also asked to consider the discretionary power to cancel the visa.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(b) of the Migration Act was established, and if so, whether the discretion to cancel the visa should be exercised in Mr. Park's favour. In determining these issues, the Tribunal was required to consider various factors, including the purpose of Mr. Park's stay in Australia, the extent of his compliance with visa conditions, and the degree of hardship that might be caused by cancellation. 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 under section 116(1)(b) was indeed established, as Mr. Park had ceased employment for more than 60 days. However, in exercising its discretion, the Tribunal took into account Mr. Park's long period of residence in Australia (since 2011), his consistent compliance with visa conditions until the employment issue arose, and the circumstances surrounding his dismissal, which he claimed was unfair. The Tribunal also considered the significant impact of the COVID-19 pandemic on his ability to secure new employment and the potential hardship to him and his family, who had also relocated to Australia and had established strong ties to the community, including his son's education and social connections.

Ultimately, the Tribunal was satisfied that the circumstances warranted setting aside the cancellation decision for Mr. Park. The Tribunal noted that it had no jurisdiction to make orders in relation to other applicants who may have been part of the family unit.