1600850 (Migration)

This matter concerned an appeal by Mr. Gong against the cancellation of his Subclass 457 (Business (Long Stay)) visa. The dispute arose from the Department of Immigration's decision to cancel Mr. Gong's visa, which he believed should not have occurred as he continued to work. The appeal was heard by Kate Millar, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation of Mr. Gong's visa existed, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr. Gong had breached a condition of his visa, and if that breach warranted cancellation, considering all relevant circumstances, including government policy.

The Tribunal found that Mr. Gong had breached a condition of his visa, satisfying the ground for cancellation under s.116(1)(b) of the relevant Act. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. The Tribunal noted that Mr. Gong's understanding of the cancellation process and his employment situation was unclear, with his evidence shifting based on information provided. Despite submissions from Mr. Gong's representative regarding a new sponsorship application, the Tribunal concluded that Mr. Gong would not be in a less favourable position regarding future visa applications if his current visa were cancelled, particularly as the cancellation was not for working without authority.

Having considered all circumstances, the Tribunal affirmed the decision to cancel Mr. Gong's Subclass 457 visa. The Tribunal stated it had no jurisdiction concerning any other applicants.