Proctor (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 482 Temporary Skill Shortage visa granted to the applicant, who was nominated to work as a Hotel or Motel Manager. The applicant had ceased employment with the sponsoring business on 28 February 2020, and the visa was subsequently cancelled on 31 August 2020, on the basis that the applicant had not complied with visa condition 8607(5), which stipulates that a period of ceased employment must not exceed 60 consecutive days. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had indeed failed to comply with the 60-day employment cessation condition. If the ground for cancellation was established, the Tribunal then had to consider all relevant circumstances, including policy guidelines and the applicant's submissions, in deciding whether to exercise its discretion to set aside the cancellation.

The Tribunal found that the applicant had ceased employment for a period exceeding 60 consecutive days, thus establishing the ground for cancellation under section 116(1)(b). However, the Tribunal then considered its discretion. It noted that the cessation of employment was due to COVID-19 lockdown and trading restrictions, which led to the sponsoring business ceasing operations. The Tribunal also took into account that the applicant had secured new employment with a different business, which had been approved as a standard business sponsor and had nominated the applicant for a Subclass 482 visa. The Tribunal accepted that the applicant's new employer would be adversely affected if the applicant could no longer work for them.

Consequently, the Tribunal determined that the decision to cancel the applicant's visa should be set aside. The Tribunal exercised its discretion in favour of the applicant, considering the exceptional circumstances arising from the pandemic and the applicant's efforts to secure new employment and sponsorship.