Ma (Migration)

This matter concerned an appeal by the applicant, Mr Ma, against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was cancelled on the grounds that he had ceased employment with his sponsor, GUAN FENGXIA, for a period exceeding 90 consecutive days, thereby breaching visa Condition 8107(3)(b). The applicant had argued that he was in the final stages of securing a new sponsor, which he contended meant the grounds for cancellation did not exist. The Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation existed. It found that the applicant had been granted a Subclass 457 visa to work as a Chef for GUAN FENGXIA. Department records indicated that the applicant ceased employment with this sponsor on 14 April 2017. The applicant's response to the Notice of Intention to Consider Cancellation stated that he had been searching for new employment and was in the final stages of finalising a contract with a potential new sponsor. However, the Tribunal noted that the applicant did not provide further comments or respond to the information put to him in accordance with the relevant provisions of the Migration Act. Relying on the available information, the Tribunal was satisfied that the applicant had breached Condition 8107(3)(b) by ceasing employment for more than 90 consecutive days, and there was no evidence of him resuming employment with the original sponsor or securing a new approved nomination within that period.

Having established that the ground for cancellation existed, the Tribunal then considered whether to exercise its discretion to cancel the visa. While the applicant's breach was not a mandatory cancellation ground, the Tribunal had regard to relevant circumstances, including those outlined in the Department's Procedures Advice Manual. The applicant had not provided any evidence to the Tribunal explaining why his visa should not be cancelled, beyond his initial statement about seeking new employment. The Tribunal noted that the applicant appeared to have been in Australia to work for his sponsor but was no longer employed. There was no evidence of an approved or pending nomination for other employment, nor had the applicant availed himself of the opportunity to provide information about his current employment situation. While the Tribunal acknowledged this might be the applicant's only breach and he had not been uncooperative, it found no evidence of hardship, consequential cancellations, or fear of returning to his home country that would outweigh the grounds for cancellation. The Tribunal concluded that the purpose of the Subclass 457 visa was to fill a temporary skill shortage, and there was no evidence that the applicant currently had an approved or pending nomination or a compelling need to remain in Australia.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.