Gong (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first named applicant, Mr Gong. The dispute arose from the applicant ceasing employment with his sponsoring employer for a period exceeding 90 consecutive days, which constituted a breach of visa condition 8107. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation decision, considering all relevant circumstances.

The Tribunal first addressed whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. It found that the applicant had indeed breached condition 8107 by exceeding the 90-day limit for ceasing employment. This breach was linked to the deregistration and winding up of his sponsoring employer, Ausray Industries Pty Ltd, which occurred prior to the visa cancellation. The Tribunal then considered the exercise of discretion, weighing factors such as the purpose of the applicant's stay, his ability to secure new nomination, and the potential hardship to himself and his family.

In its reasoning, the Tribunal acknowledged that the applicant's employer's deregistration and business wind-up were circumstances beyond his control, and that he had made unsuccessful attempts to secure a new nomination. It also gave some weight to the applicant's submission that his son should complete his schooling in Australia. However, the Tribunal found that the applicant's son could still attend school in China and would not be separated from his parents if the family returned. Furthermore, the Tribunal concluded that the applicant and his spouse would face greater financial hardship remaining unemployed in Australia than returning to China, where they both had the right to work.

On balance, the Tribunal concluded that the visa should be cancelled and affirmed the delegate's decision to cancel Mr Gong's Subclass 457 visa. The Tribunal noted that it had no jurisdiction concerning any other applicants.