Lin (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa. The matter had been remitted back to the Tribunal by the Federal Circuit Court due to a jurisdictional error, specifically a denial of procedural fairness concerning a non-disclosure certificate issued by the Department. The Tribunal was required to determine whether the grounds for visa cancellation existed and, if so, whether to affirm the cancellation decision.

The Tribunal was tasked with assessing whether the applicant met the criteria for visa cancellation under section 116 of the Migration Act 1958 (Cth). This involved considering evidence that the applicant had ceased working with their sponsor and had not commenced working within 90 days, as required. The Tribunal also had to address the procedural fairness issue by disclosing the "gist" of the information contained within the non-disclosure certificate, which related to a site visit finding that the sponsor's premises appeared vacated. The applicant was given an opportunity to make submissions on the validity of the certificate and the adverse information, but no response was received.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Act was satisfied. In exercising its discretion, the Tribunal considered the purpose of the Subclass 457 visa, which is to enable businesses to sponsor skilled workers from overseas. The Tribunal was satisfied that this purpose no longer existed, as the applicant had ceased working in the nominated position and the sponsor's nomination had expired. The Tribunal concluded that the reasons for cancelling the visa outweighed those for not cancelling it, finding that cancellation was the correct and preferable decision.

The Tribunal affirmed the decision to cancel the first named applicant’s Subclass 457 visa. The Tribunal also stated that it had no jurisdiction with respect to the other applicants.