Chen (Migration)

This matter concerned an appeal by Mr. Chen against the cancellation of his Temporary Skill Shortage (Class GK) visa, Subclass 482. The primary ground for cancellation was that Mr. Chen had ceased employment with his approved sponsor, ASHTON Pty Ltd, and subsequently with his new sponsor, TEYS SOUTHERN AUSTRALIA Pty Ltd, without a new nomination being approved. The Administrative Appeals Tribunal was required to determine whether the cancellation was justified and whether discretion should be exercised in favour of the applicant.

The Tribunal considered whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, which it found to be the case as Mr. Chen had ceased employment with his sponsors. The Tribunal then had to decide whether to exercise its discretion to cancel the visa. In doing so, it had regard to the applicant's circumstances, including a reported work-related injury, and the Department's Procedures Advice Manual. The Tribunal noted that the applicant had provided limited evidence regarding his injury and had declined an invitation to attend a hearing.

The Tribunal found that Mr. Chen had arrived in Australia in December 2018 and had remained in Australia since then. His visa was granted on the condition that he work for ASHTON Pty Ltd, but he ceased employment with them in August 2019. He later obtained a new nomination to work for TEYS SOUTHERN AUSTRALIA Pty Ltd, but ceased employment with them in June 2021. There was no evidence of a further approved nomination. The Tribunal also noted that Mr. Chen's wife had lodged a visa application where he was listed as a dependent, suggesting his purpose for remaining in Australia may have shifted to accompanying his wife. While the applicant had complied with visa condition 8501 regarding health insurance, the Tribunal placed weight on the cessation of employment and the apparent change in his purpose for remaining in Australia in favour of cancelling the visa.

The Tribunal affirmed the decision to cancel Mr. Chen's visa.