Sargent (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 been granted the visa while in Australia, with a condition requiring commencement of employment within 90 days of the grant. The sponsor advised the Department that the applicant had not commenced employment and would not be proceeding with it. Subsequently, the Department issued a Notice of Intention to Consider Cancellation on the grounds of non-compliance with this visa condition. The Administrative Appeals Tribunal was tasked with determining whether the cancellation decision should be upheld.

The primary legal issue before the Tribunal was whether the ground for cancellation, specifically the failure to comply with condition 8607(4)(b) of the visa, had been established. This condition mandated that the visa holder commence work within 90 days of the visa grant if they were in Australia at that time. The Tribunal also had to consider whether, having established the ground for cancellation, it should exercise its discretion not to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation did exist, as the applicant had not commenced employment with the sponsor within the stipulated 90-day period. However, the Tribunal then proceeded to consider its discretion. It acknowledged that the applicant was currently working in the nominated occupation and that cancelling his visa would cause significant emotional distress to him and his partner, potentially leading to their separation, which weighed substantially against cancellation. Despite the applicant not satisfying the original purpose of his travel by commencing employment with the sponsor, the Tribunal concluded that, on balance, the circumstances, including the applicant's skills, current employment, and relationship, warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 482 visa and substituted a decision not to cancel it.