LIN (Migration)

This matter concerned an appeal by Mr Lin against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa by the Department of Home Affairs. The visa was granted on the basis of a nomination by LisCon, a standard business sponsor, for the occupation of Bricklayer. However, LisCon had been placed into liquidation and had ceased trading prior to the approval of the nomination and the grant of Mr Lin's visa. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(aa) of the Migration Act 1958 were made out, and if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal considered whether the decision to grant Mr Lin's visa was based on a fact or circumstance that did not exist. It found that LisCon, as a sponsor, was required to be lawfully operating a business. Given that LisCon had ceased trading and was in liquidation at the time of the nomination approval and visa grant, it could not be considered an approved sponsor. Consequently, the circumstances that enabled Mr Lin to meet the visa grant criteria did not exist. The Tribunal also considered whether Mr Lin had complied with visa condition 8107(3), which required him to work only for his sponsor in the nominated occupation and to commence work within 90 days of arrival. The evidence indicated Mr Lin had not worked for LisCon and had commenced other employment.

In its reasoning, the Tribunal noted that Mr Lin acknowledged the ground for cancellation was made out. It found that the purpose of Mr Lin's travel and stay in Australia had ceased to exist from at least the date of LisCon's liquidation. The Tribunal also gave weight to Mr Lin's failure to comply with visa condition 8107(3), including working in the nominated occupation and commencing work with his sponsor within the prescribed timeframe. While acknowledging that the circumstances leading to the cancellation may have been beyond Mr Lin's control, the Tribunal found that the evidence in favour of cancellation, including Mr Lin's conduct and the non-existence of the factual basis for the visa grant, strongly outweighed any considerations in favour of not cancelling the visa.

The Tribunal affirmed the decision to cancel Mr Lin's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to other applicants.