HWANG (Migration)

This matter concerned an appeal by the applicant, Mr Hwang, against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant's employer had gone into liquidation, and he had remained unemployed for a period exceeding 90 consecutive days, a breach of a condition attached to his visa. He had also failed to inform the Department of this cessation of employment and had not provided evidence of a new approved sponsorship. The decision was heard by Catherine Carney-Orsborn, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the Minister or Tribunal to cancel a visa if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which stipulates that the period of unemployment must not exceed 90 consecutive days.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment in April 2016 and had remained unemployed for a period significantly exceeding 90 days. While this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of its discretion. In doing so, it had regard to the applicant's circumstances, including his stated desire to remain in Australia with his children who had been studying there for several years, and his claim that his former employer's business was placed into voluntary liquidation. Despite being granted an extension to secure new sponsorship, the applicant failed to provide evidence of a nomination outcome, instead submitting an IELTS result. The Tribunal noted that the applicant's purpose for being in Australia was to work, and he had been unsuccessful in securing further employment since April 2016, remaining in breach of his visa conditions for a considerable period.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa, concluding that, considering all the circumstances, cancellation was the appropriate course of action. The Tribunal stated it had no jurisdiction with respect to any other applicants.