1606238 (Migration)

This matter concerned an appeal by Ru Xiong against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa by the Department of Immigration and Border Protection. The visa had been granted on the basis of a nomination by Yuu Sushi Train Pty Ltd for her to work as a Restaurant Manager. The Department initiated cancellation proceedings after receiving information that Ms. Xiong had ceased employment with the sponsor on 14 August 2015, exceeding the 90-day period permitted under visa condition 8107(3)(b) to secure new employment. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether Ms. Xiong had breached visa condition 8107(3)(b) by ceasing employment with her sponsor for more than 90 consecutive days. The Tribunal also had to determine whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, considering all relevant circumstances. The Tribunal noted that while Ms. Xiong did not dispute the ground for cancellation, the exercise of discretion required consideration of factors such as whether the circumstances leading to the breach were beyond the visa holder's control.

The Tribunal found that a ground for cancellation existed under s.116(1)(b) of the Migration Act 1958 (Cth) due to the breach of condition 8107(3)(b). However, the Tribunal concluded that the visa should not be cancelled. This decision was based on the finding that Ms. Xiong’s cessation of employment was due to the sponsor’s business going into liquidation, a circumstance beyond her control. Furthermore, the Tribunal noted that Ms. Xiong had secured a new nomination from an approved sponsor for a similar position, and this nomination had been approved by the Department. Considering these factors, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel it.