Wang (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Wang, who sought review of a decision to cancel their Temporary Skill Shortage (Class GK) visa (subclass 482). The visa was cancelled on the grounds that Wang had breached visa conditions by working in an occupation other than their nominated one and by working in a position not in the nominator's business.

The Tribunal was required to determine whether Wang had breached the condition requiring them to only work in their nominated occupation, and whether they had breached the condition requiring them to only work in a position within the nominator's business. The Tribunal also had to consider whether, if a breach was established, it should exercise its discretion to set aside the cancellation decision.

In relation to the first ground, the Tribunal found that while Wang, a café or restaurant manager, had performed duties as a cook or waiter due to COVID-related staff shortages, they had still performed the role of a manager, even when covering for shortages. Therefore, this ground for cancellation was not established. However, regarding the second ground, the Tribunal found that Wang had worked in a position within their own business, albeit with the advice and support of the sponsor and an agent. This constituted a breach of the condition that they only work in the nominator's business. Despite this breach, the Tribunal noted that Wang had sold their business as soon as the breach was realised, had a significant length of residence in Australia, and an otherwise good visa compliance and work record.

Consequently, the Tribunal set aside the decision under review and substituted a new decision not to cancel Wang's visa.