1612105 (Migration)

This matter concerned an appeal by Mr Xu against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa was granted on the basis of a nomination by Auyou Corporation Pty Ltd (Auyou) for an occupation as a Management Consultant. The Department of Home Affairs had cancelled Mr Xu's visa on the grounds that he had breached visa condition 8107 by ceasing employment with his sponsor for more than 90 consecutive days and had admitted to working for various unnamed employers. Mr Xu contended that Auyou had never provided him with employment as a Management Consultant, but rather had directed him to work as a Wall & Floor Tiler for other businesses, receiving his wages in cash which he was then required to pay into a nominated bank account. He further alleged an illegal financial arrangement with his sponsor and threats from his sponsor's representative.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (the Act) was established, specifically whether Mr Xu had failed to comply with a condition of his visa. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the decision to cancel the visa should be affirmed, having regard to all relevant circumstances.

The Tribunal found that Mr Xu had breached visa condition 8107(3)(b) of the Migration Regulations 1994, which requires a Subclass 457 visa holder to not cease employment for more than 90 consecutive days. The Tribunal was satisfied, based on Mr Xu's admissions and statutory declarations, that he had not worked for Auyou as a Management Consultant, but had instead been engaged in tiling work for other entities, with payments being channelled through a third party. The Tribunal considered that the purpose of Mr Xu's visa, to work as a Management Consultant for Auyou, had not been fulfilled for over four years, which weighed heavily in favour of cancellation. Furthermore, the Tribunal noted that Mr Xu and his family had not regularised their visa status despite being encouraged to do so, and no evidence of such regularisation had been provided.

The Tribunal affirmed the decision to cancel Mr Xu's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.