Tello Bernabeu (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 482 – Temporary Skill Shortage visa. The cancellation was based on the applicant's alleged failure to comply with condition 8607(5) of the Migration Regulations 1994, which stipulates that a visa holder who ceases employment must not remain unemployed for more than 60 consecutive days. The applicant had ceased employment with his sponsoring business, Chit Chat Communications Pty Ltd, on 8 February 2021, and subsequently applied to the Administrative Appeals Tribunal for a review of the cancellation decision.

The Administrative Appeals Tribunal was required to determine whether the ground for cancellation, namely the breach of condition 8607(5), was established. If so, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The applicant had responded to a notice of intention to cancel, stating his holiday was due to end in April 2021 and that his sponsor would notify the Department of his cessation of employment after his annual leave. However, the Tribunal also noted that the applicant had lodged a Form 1023 in association with a student visa application, stating he ceased employment in February 2021.

The Tribunal found that the applicant did indeed cease employment on 8 February 2021 and that the period of unemployment exceeded 60 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including his claim of finding new employment, which was unsubstantiated by documentary evidence. The Tribunal also noted that the applicant was not a licensed electrician and that his new employer had not yet sponsored or nominated him for a temporary visa. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 482 visa.