1600629 (Migration)

This matter concerned an application to review the cancellation of the first applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant argued that he had not commenced work because his bridging visa prohibited him from doing so and that he was awaiting news on a nomination application lodged in October 2015. The Tribunal considered whether to exercise its discretion to cancel the visa, having regard to the Department's Procedures Advice Manual, the purpose of the visa, and the applicant's need to remain in Australia.

The legal issues before the Tribunal included whether the applicant had a compelling need to remain in Australia and the degree of hardship that would be caused by the visa's cancellation. The Tribunal considered the applicant's stated reasons for remaining in Australia, including his desire to continue working on a Subclass 457 visa and his concerns about finding employment and supporting his family in China. The Tribunal also noted the applicant's admission that he had sold property and spent his savings to come to Australia.

The Tribunal reasoned that the original purpose of the applicant's visa, which was to enable him to work in a nominated position with an approved sponsor, no longer existed as he was not working in that capacity. While acknowledging the applicant's claims of hardship if he returned to China, the Tribunal found difficulty in reconciling these claims with his current circumstances of being unemployed in Australia for nearly 12 months. On balance, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa, noting it had no jurisdiction with respect to any other applicants.