Nguyen (Migration)

This matter concerned the review of a decision to cancel the first applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a Building Associate, had ceased employment with his sponsoring employer, Sphere Projects Pty Ltd, on 21 August 2018. The visa was subsequently cancelled by the Department on 14 June 2019. The applicant, along with his wife and son, sought review of this cancellation decision before the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This section permits the Minister to cancel a visa if the holder does not comply with a condition of their visa. Specifically, the Tribunal had to determine if the applicant had breached condition 8107(3)(b), which stipulates that a visa holder who ceases employment with their sponsor must not remain unemployed for more than 90 consecutive days. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was established. The applicant admitted to ceasing employment with the sponsor in April or May 2018, well before the 90-day limit expired. He also failed to provide any evidence of returning to work for the sponsor or securing new employment. The applicant's stated reason for ceasing employment was English language communication difficulties, which he had not taken steps to remedy. While the applicant raised concerns about his son's schooling in Vietnam as a reason for seeking time to make arrangements, this did not negate the breach of the visa condition. The Tribunal considered the applicant's family circumstances, including his son's schooling in Australia and his wife's return to Australia, but concluded that these factors did not outweigh the established breach of the visa condition.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants.