Sultana (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of condition 8607(5) of their visa. The delegate concluded that this breach provided grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal considered whether the applicant's cessation of employment was a matter beyond their control and whether the employer's business restructuring, which led to the applicant's employment with a related entity, constituted a mitigating circumstance. The Tribunal also had to assess the broader implications of cancellation, including the impact on dependants and the applicant's future ability to apply for other visas, as well as Australia's international obligations.

The Tribunal found that while the ground for cancellation under section 116(1)(b) was established due to the breach of condition 8607(5), the exercise of discretion to cancel the visa was not mandatory. The Tribunal placed significant weight on the fact that the applicant's employer's decision to restructure its business was beyond the applicant's control. The applicant continued in the same role with a related entity, and the delay in the new nomination's approval by the Department was the sole reason for the breach. The Tribunal also considered that the applicant's current employer is an approved sponsor and continues to employ the applicant. Furthermore, the Tribunal noted that the cancellation would have significant adverse consequences for the applicant and their dependants, and that these consequences would be manifestly unfair in the circumstances.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. The Tribunal concluded that the circumstances warranted the exercise of discretion against cancellation, finding that the applicant's actions were not wilful and that the employer's restructuring was the primary cause of the breach.