Chen (Migration)

This matter concerned the cancellation of Mr Chen's Subclass 457 (Temporary Work (Skilled)) visa. The visa was granted based on a nomination by his sponsoring employer, the Company. However, the Company was placed into liquidation and ceased trading prior to the approval of Mr Chen's nomination and his subsequent visa grant. The Department issued Mr Chen with a Notice of Intention to Consider Cancellation, and following his response, affirmed the decision to cancel his visa. Mr Chen sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(aa) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the circumstances that enabled the grant of Mr Chen's visa no longer existed, and if the Company was a lawfully operating business and an approved sponsor at the time of the nomination. The Tribunal also considered Mr Chen's compliance with his visa conditions, particularly condition 8107(3), and the potential hardship arising from cancellation.

The Tribunal reasoned that the Company, having been placed into liquidation and ceased trading before Mr Chen's nomination was approved, was not a lawfully operating business and therefore not an approved sponsor. Consequently, the circumstances that enabled the grant of Mr Chen's visa no longer existed. The Tribunal found that Mr Chen had not provided evidence of continued employment or a new sponsoring employer, and had failed to comply with visa condition 8107(3), which requires the visa holder to work only for their sponsor or an associated entity and to find a new sponsor within 90 days of ceasing employment. Despite acknowledging that the liquidation circumstances were beyond Mr Chen's control, the Tribunal found that he had not taken steps to familiarise himself with his visa conditions or seek alternative sponsorship. The Tribunal also considered the limited evidence of hardship and consequential impacts on his family, ultimately concluding that the factors favouring cancellation strongly outweighed those against it.

The Tribunal affirmed the decision to cancel Mr Chen's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning the visas of Mr Chen's wife and son.