Li (Migration)

This matter concerned an appeal by Mr Li against the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from allegations that Mr Li had breached a condition of his visa by working for an entity that was not his approved sponsor or an associated entity of his sponsor. The decision was made by the Administrative Appeals Tribunal (AAT).

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 made out. This required the Tribunal to determine if Mr Li had failed to comply with condition 8107(3)(a)(ii)(B) of his visa, which mandated that he work only in a position with his approved sponsor or an associated entity. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should remain cancelled, taking into account all relevant circumstances.

The Tribunal considered the evidence presented, including statements from Mr Li and the Department's Sponsor Monitoring Unit. While the Department's delegate had concluded that Mr Li had breached condition 8107(3)(a)(ii)(B) by working for an unapproved employer, the Tribunal found that the evidence did not establish this ground. Specifically, the Tribunal noted that Mr Li had been nominated by Sotheby's, and although there were initial difficulties and delays with that nomination, a subsequent nomination was approved. Mr Li also provided evidence of financial difficulties during the transition between sponsors and that he had taken steps to find a new sponsor. The Tribunal was not satisfied that the ground for cancellation under s.116(1)(b) had been made out.

Consequently, the Tribunal set aside the decision to cancel Mr Li's visa and substituted a decision not to cancel his Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning the second applicant.