Skidmore (Migration)

The Administrative Appeals Tribunal considered a case involving an applicant whose Temporary Skill Shortage (Class GK) visa, Subclass 482, was subject to cancellation. The dispute arose because the applicant ceased employment for a period exceeding 60 consecutive days, thereby breaching visa condition 8607. The applicant contended that their decision to return to the UK was influenced by mental health concerns, the unprecedented global pandemic, and significant financial, psychological, and emotional hardship.

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 applicant's visa should be cancelled. It was not disputed that the applicant ceased employment with their sponsoring employer and did not have an approved nomination for alternative employment within the prescribed 60-day period, thus breaching condition 8607(5). The Tribunal was required to determine if this breach warranted cancellation, considering all relevant circumstances, including government policy.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established, as the applicant had indeed breached visa condition 8607(5). However, as this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's circumstances, including their reasons for ceasing employment and returning to the UK, the impact of the global pandemic, and the applicant's subsequent efforts to secure new employment and a nomination. The Tribunal concluded that, on balance, the factors favouring non-cancellation outweighed those favouring cancellation.

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