Cheng (Migration)

This matter concerned an appeal by the applicant, Mr Cheng, against the cancellation of his Subclass 457 (Business (Long Stay)) visa. The ground for cancellation was that the applicant had ceased employment with his sponsoring employer, SMART IT AND BUSINESS SOLUTIONS PTY LTD, for a period exceeding 90 consecutive days, thereby breaching condition 8107(3)(b) of his visa. The applicant had been nominated for the position of Software Engineer.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The applicant had been notified of the intention to cancel his visa and provided a response, but the Tribunal found that this response did not address his compliance with visa conditions.

The Tribunal reasoned that the applicant had indeed failed to comply with condition 8107(3)(b) by ceasing employment for more than 90 days without securing a new approved nomination or recommencing employment with his sponsor or an associated entity. While the applicant had lodged an application for a permanent Employer Nomination Scheme (ENS) visa, this was still being processed and did not negate the breach of his Subclass 457 visa conditions. The Tribunal considered the applicant's circumstances, including his residency in Australia since 2016 and the pending permanent visa application, but concluded that these factors did not outweigh the breach of a fundamental visa condition.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.