Huang (Migration)

This matter concerned an appeal by the applicant, Mr Huang, against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on the basis of a nomination by L & Z Restore Massage Pty Ltd. Concerns arose following an Australian Border Force site visit where the applicant was not present at the premises, with employees stating he was on sick leave. The Australian Border Force held concerns about the credibility of the employees interviewed and formed a view that the sponsor may have created a false appearance of employment. Following a Notice of Intention to Consider Cancellation, the delegate decided to cancel the visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled having regard to all relevant circumstances. The Tribunal was required to consider the evidence anew, including additional documentary and oral evidence provided by the applicant.

The Tribunal reviewed the evidence de novo, including speaking with the applicant in person. While acknowledging that the delegate’s decision to find the ground for cancellation made out was justifiable based on the information available at the time, the Tribunal concluded that, having considered all the evidence, the visa should not be cancelled. The Tribunal found that the applicant had provided sufficient evidence, both documentary and oral, to support his claim of full-time employment with the sponsor in the nominated occupation.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa. The Tribunal noted it had no jurisdiction with respect to any other applicants.