Lin (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicant had been granted the visa to work as a Welder for Ausray Industries Pty Ltd. The dispute arose when the applicant ceased employment with Ausray Industries, and no new approved nomination was secured within the prescribed 90-day period.

The Tribunal was required to determine whether the ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This section permits cancellation if the holder fails to comply with a visa condition. Specifically, the Tribunal had to assess whether the applicant complied with condition 8107(3)(b), which mandates that the period during which the holder ceases employment must not exceed 90 consecutive days.

The Tribunal found that the applicant ceased employment with Ausray Industries in August 2015. Despite the applicant's assertion that he applied for another visa within 90 days, he ultimately conceded that he did not commence employment under a new approved 457 visa within that timeframe. Consequently, the Tribunal was satisfied that the ground for cancellation under s 116(1)(b) was made out. In exercising its discretion, the Tribunal considered the applicant's circumstances, including the purpose of his visa, which was to work as a welder for a specific employer, a purpose that no longer existed. The Tribunal also weighed the potential hardship of cancellation against the applicant's lack of a reasonable expectation of permanency in Australia and the significant period he had spent in Australia without employment in his nominated occupation.

The Tribunal affirmed the decision to cancel the applicant's visa.