Wen (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Wen, who sought review of a decision to cancel his Temporary Skill Shortage (Class GK) visa, subclass 482. The cancellation was based on an alleged non-compliance with his visa condition requiring him to work only in his nominated occupation as an electrical engineer. A site visit had found Mr. Wen undertaking construction work in a role closer to a site supervisor and being paid less than his contracted salary.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The legal issues revolved around whether Mr. Wen had breached his visa condition and, if so, what weight should be given to various factors in deciding whether to cancel his visa, including the purpose of his stay, the extent of compliance, the hardship that cancellation would cause, and the circumstances in which the alleged non-compliance arose.

The Tribunal found that the ground for cancellation existed, but that cancellation was not mandatory. In exercising its discretion, the Tribunal had regard to several factors. It noted that Mr. Wen’s purpose of travel was to work as an electrical engineer and that he was currently working in that occupation. The Tribunal placed significant weight on evidence suggesting that Mr. Wen had not deliberately failed to comply with his visa conditions, attributing the situation to difficulties faced by his sponsoring employer during the COVID-19 pandemic, such as workload surges, material delays, and staff shortages, which led to employees performing additional tasks. The Tribunal also accepted that Mr. Wen would suffer emotional, psychological, and financial hardship if his visa were cancelled, and placed considerable weight on these factors against cancellation. Furthermore, the Tribunal considered that the circumstances in which the ground for cancellation arose appeared to be beyond Mr. Wen’s control.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr. Wen's visa and substituted a decision not to cancel the visa.