Li (Migration)

This matter concerned an application for review of the decision to cancel the applicant's Subclass 457 (Business (Long Stay)) visa. The applicant, Mr Li, had been nominated by Max Construction (Australia) Pty Ltd (the sponsor) to work as a Bricklayer. The core of the dispute revolved around whether Mr Li had complied with the conditions of his visa, specifically condition 8107(3)(b), which stipulated that he could not cease employment for more than 90 consecutive days without working for the sponsor or an associated entity. The Administrative Appeals Tribunal considered the delegate's decision to cancel the visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, which relates to non-compliance with visa conditions. Specifically, the Tribunal had to assess if Mr Li had breached condition 8107(3)(b) by ceasing employment with the sponsor for longer than 90 days and working for entities other than the sponsor or its associated entities without an approved nomination. If the 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.

The Tribunal found that the ground for cancellation did exist. It was satisfied that Mr Li had ceased employment with the sponsor in September 2015 and had not worked for the sponsor or an associated entity for more than 90 consecutive days thereafter, thereby breaching condition 8107(3)(b). While Mr Li claimed he was directed by the sponsor to work for another company and continued to receive wages, the Tribunal found this did not satisfy the visa condition. In exercising its discretion, the Tribunal gave significant weight to the breach of this fundamental visa condition, which went to the core purpose of the subclass 457 visa. The Tribunal also considered that Mr Li had not demonstrated a compelling need to remain in Australia and that the adverse impacts of cancellation did not outweigh the reasons for cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Li's Subclass 457 visa.