Hur (Migration)

This case concerned the cancellation of a Subclass 457 (Business (Long Stay)) visa held by the first-named applicant, and the consequential cancellation of visas held by other applicants. The dispute arose because the first-named applicant allegedly ceased to work in his nominated occupation as a Wall and Floor Tiler with DWL, and the position was found to be non-genuine. The Administrative Appeals Tribunal was required to determine whether a ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal considered evidence regarding the first-named applicant's employment history and the circumstances surrounding his engagement with DWL. The delegate's finding of non-genuineness was based on DWL's advice that the applicant had never commenced employment and could not be contacted. The first-named applicant contended that he had a genuine intention to work, but faced discriminatory policies from DWL, was misled by a migration agent, and was forced into a subcontractor arrangement through his wife's company, Wiz Tiling, which he understood to be illegal under his visa conditions. He also presented evidence of his long-term ties to Australia, including property ownership and his children's education and residency aspirations.

The Tribunal analysed the applicant's conflicting statements about his employment status with DWL, noting that he initially stated he worked as a subcontractor for 60-70% of the time and as an employee for the remainder, but later suggested he worked as a subcontractor the whole time, with payments made through Wiz Tiling. The Tribunal also considered the applicant's assertion that DWL misrepresented his work behaviour to justify cancellation, and his claims of being forced into an illegal working environment. Despite the applicant's expressed desire to remain in Australia for family reasons and his belief in his potential contribution to the community, the Tribunal ultimately affirmed the delegate's decision to cancel the first-named applicant's visa. The Tribunal found that the other applicants' visas were automatically cancelled as a consequence of the first-named applicant's visa cancellation, and that it lacked jurisdiction with respect to their applications.