Somogyi (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 482 Temporary Skill Shortage visa. The applicant had been granted the visa on 7 August 2018, with a condition that if employment ceased, the cessation period must not exceed 60 consecutive days. The applicant's sponsor notified the Department on 11 January 2019 that the applicant had ceased employment on 13 December 2018. A Notice of Intention to Consider Cancellation was issued on 24 January 2020, and the applicant responded on 3 February 2020. The Tribunal, constituted by Mr S Norman, was required to determine whether the grounds for cancellation existed and, if so, whether to exercise discretion to cancel the visa.

The primary legal issue was whether the applicant had complied with condition 8607(5) of his visa, which stipulated that he must not cease employment for more than 60 consecutive days. The Tribunal also had to consider whether, having found a ground for cancellation, the visa should be cancelled, taking into account all relevant circumstances, including government policy and any hardship to the applicant. The applicant's nominated occupation was ICT Business Analyst, and the visa conditions required him to work for his sponsor or an associated entity, or have a new nomination application approved by the Department if he intended to work for a different sponsor.

The Tribunal found that the applicant had ceased employment with his sponsor on 13 December 2018 and had not returned to work for the sponsor or an associated entity within the 60-day period. Furthermore, there was no evidence that a new nomination application had been lodged or approved, meaning the applicant could not lawfully work for another sponsor in Australia while holding the visa. The applicant confirmed he had not worked since ceasing employment, which was approximately 21 months prior to the Tribunal hearing, and that his living expenses were met by friends. The Tribunal concluded that the purpose for which the visa was granted had ceased and that the applicant had not complied with condition 8607(5).

Having affirmed that a ground for cancellation existed under section 116(1)(b) of the Migration Act 1958 (Cth), the Tribunal proceeded to consider the exercise of discretion. It noted that the applicant had not provided evidence of hardship if the visa were cancelled. Considering the prolonged period of unemployment, the cessation of the visa's purpose, and the non-compliance with visa conditions, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa.