Chung (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)), held by the applicant, Mr. Chung. The dispute arose because Mr. Chung had ceased employment in his nominated occupation as a wall and floor tiler and a new nomination was lodged late. Mr. Chung subsequently resigned, citing physical injury, and the Tribunal was presented with a letter from the nominator. The applicant resided in a different state from the nominator, and the Tribunal had to determine whether the cancellation of his visa was justified.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if the Minister is satisfied that the visa holder has not complied with a condition of the visa. Specifically, the Tribunal had to determine if Mr. Chung had breached Condition 8107, which requires that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The Tribunal also had to consider whether, if the ground for cancellation was established, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that Mr. Chung had indeed failed to comply with Condition 8107, as his new nomination was lodged 99 days after he ceased employment with his previous sponsor, Top Tiling. Despite Mr. Chung's assertions that his former representative made errors and that he was unaware of the precise implications of the 90-day limit, the Tribunal noted his admission that he was "fully aware" of the restriction. The Tribunal applied the principle that it is for the decision-maker to attribute weight to the evidence presented, referencing established High Court authority. In exercising its discretion, the Tribunal considered that Mr. Chung had not secured a current approved nomination, that a previous nomination had been refused on the basis that the position was not genuine, and that he had not sought alternative employment or nominations for a significant period. The Tribunal concluded that the purpose of his Subclass 457 visa was no longer extant.

Accordingly, the Tribunal affirmed the decision to cancel Mr. Chung's Subclass 457 visa.