Vetrano (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 482 Temporary Skill Shortage visa. The applicant's visa was cancelled on the grounds that he had ceased employment for more than 60 consecutive days, in breach of a visa condition. The applicant contended that his cessation of employment was due to COVID-19 pandemic restrictions, that he was not formally notified of his termination, and that he was not aware of the termination until he received a notice of intention to cancel his visa. The Tribunal considered the circumstances surrounding the applicant's employment cessation, his subsequent injury, and the impact on his family unit.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was correct, and if so, whether the discretion to cancel the visa should have been exercised in the applicant's circumstances. Specifically, the Tribunal had to determine if the ground for cancellation existed, and if it did, whether the applicant's personal circumstances, including the impact of COVID-19, his subsequent serious workplace injury, and the potential hardship to his family, warranted setting aside the cancellation decision.

The Tribunal found that while the ground for cancellation under section 116(1)(b) existed, as the applicant had ceased employment for more than 60 days, the cancellation was not mandatory. The Tribunal then considered the exercise of discretion, noting that the applicant was not formally notified of his termination and was unaware of it until receiving the notice of intention to cancel. It also took into account the applicant's serious workplace injury, which rendered him unable to work for at least six months and could be interrupted by his departure from Australia. Furthermore, the Tribunal considered the impact on the applicant's wife and daughter, whose visas were consequentially cancelled. Balancing these factors, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel the applicant's Subclass 482 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning the other applicants, who were family members.