He (Migration)

This matter concerned the review of a decision by the Minister to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had been granted the visa on 27 July 2017, based on employment with Fuzhong Trading Pty Ltd as a Cook. The sponsor, Fuzhong Trading Pty Ltd, ceased trading on 1 October 2018, and its approval as a sponsor was subsequently cancelled. The applicant was notified of the intention to cancel his visa, but the notices were returned unclaimed.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(b) 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 consider if the applicant had complied with condition 8107 of his visa, which requires the visa holder to work in the nominated occupation and not cease employment for more than 60 consecutive days.

The Tribunal found that the applicant had ceased employment on 1 October 2018, the same day his sponsor ceased trading. As the applicant's occupation was not exempt from the requirement to work for the sponsor or an associated entity, and there was no evidence of subsequent employment with the sponsor or an associated entity, the Tribunal concluded that the applicant had failed to comply with condition 8107 by exceeding the 60-day period of unemployment. Consequently, the ground for cancellation under section 116(1)(b) was established. In exercising its discretion, the Tribunal considered the purpose of the Subclass 457 visa, which is to enable businesses to sponsor skilled workers when local workers are unavailable. The Tribunal found that this purpose no longer existed as the applicant had not been working in the nominated position since October 2018 and there was no valid nomination.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.