Train (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Temporary Skill Shortage (subclass 482) visa. The applicant had ceased employment with his sponsoring employer, George Weston Foods Limited, and commenced new employment as a Senior Dairy Farm Hand with Inionba Pastoral. The Department had not been notified of the change in employment, and the applicant contended he was misled by his employer into believing the necessary notification had been provided.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(a) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The specific ground for cancellation was that the applicant had breached a condition of his visa by ceasing employment with his sponsor and failing to notify the Department of a change in employer.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Act was established, as the applicant had ceased employment with his sponsor and the circumstances for the visa grant no longer existed. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It noted that the applicant had taken immediate steps to procure employment in a similar field and had been reasonably led to believe that his new employer had filed the necessary paperwork. The Tribunal also considered the impact of cancellation on a dependant visa holder and the potential for the applicant to re-apply for a temporary work visa, as a subclass 482 visa was not listed in Schedule 4 of the Regulations for the purposes of PIC 4013. Despite the limitations on onshore visa applications following cancellation, the Tribunal concluded that the consequences of cancellation in these circumstances would be manifestly unfair.

The Tribunal set aside the decision to cancel the applicant's visa.