Sasmitawardoyo (Migration)

This matter concerned the review of a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant. The applicant had ceased employment with his sponsor, Oasis Motel Hotel, on 6 November 2018. The Department of Home Affairs subsequently issued a Notice of Intention to Consider Cancellation of the visa on 4 February 2020, citing non-compliance with visa condition 8107(3)(b), which requires that the period of cessation of employment must not exceed 60 consecutive days. The applicant responded to this notice, asserting that the cessation of employment was due to harassment and bullying from new management, and that he and his wife had made diligent attempts to find a new sponsor. The Administrative Appeals Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8107(3)(b) of his Subclass 457 visa, which stipulated a maximum of 60 consecutive days of employment cessation. A secondary issue was whether, if the ground for cancellation was established, the Tribunal should exercise its discretion to set aside the cancellation decision, considering all relevant circumstances. The Tribunal was required to assess the applicant's explanations for his prolonged period of unemployment, including the alleged workplace harassment and bullying, his efforts to secure new sponsorship, and the impact of COVID-19 restrictions on employment opportunities.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the *Migration Act 1958* (Cth) was made out, as the applicant had ceased employment for more than 60 consecutive days. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It acknowledged the applicant's claims of workplace harassment and bullying, and his and his wife's subsequent attempts to find new sponsorship, including an engagement with Cairns Colonial Cub Resort. While noting these efforts were made significantly after the 60-day period and after the Notice of Intention to Consider Cancellation was issued, the Tribunal also had regard to country information regarding the economic impact of COVID-19 and reports of skill shortages in the applicant's nominated occupation prior to the pandemic. The Tribunal concluded that, in light of all the circumstances, the decision to cancel the applicant's visa should be set aside.