HUANG (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Huang. The dispute arose because the applicant failed to commence employment with his nominated sponsor within 90 days of arriving in Australia, thereby breaching a condition of his visa. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8107(3)(aa)(i) of his visa, which required him to commence employment within 90 days of his arrival in Australia. If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including those raised by the applicant and outlined in the Department's Procedures Advice Manual.

The Tribunal found that the applicant had indeed breached condition 8107(3)(aa)(i) as he did not commence work with his sponsor within the stipulated timeframe, a fact confirmed by both the sponsor and the applicant. In considering the exercise of discretion, the Tribunal weighed the purpose of the visa, which was for the applicant to work with an approved sponsor, against the applicant's failure to do so. The Tribunal noted the applicant's claims of financial hardship due to borrowing money to pay an agent and allegations of fraud, but found these unsubstantiated due to a lack of detail and the applicant's inability to recall the agent's name. The Tribunal gave significant weight to the breach of the visa condition and the lack of evidence of a compelling need for the applicant to remain in Australia, concluding that the visa should be cancelled.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction concerning any other applicants.