Phan (Migration)

This matter concerned a review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Phan. The applicant had been granted the visa in February 2017, sponsored by Essen Building Construction Pty Ltd for the position of Construction Project Manager. The Department of Home Affairs became aware that Essen Building Construction Pty Ltd's business ceased operating in August 2018, leading to the cancellation of its sponsorship agreement. Subsequently, the Department issued notices of intention to consider cancellation of Mr. Phan's visa due to a breach of visa condition 8107, specifically subclause (3)(a)(ii), which required him to commence work within 90 days of arrival.

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, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Mr. Phan had complied with condition 8107, which mandated commencing employment within 90 days of arrival. The Tribunal also considered the applicant's submissions regarding the circumstances surrounding his employment and the potential hardship cancellation would cause to him and his family.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established because Mr. Phan had ceased employment with his sponsor for a period exceeding sixty consecutive days, and his original sponsor's business had ceased to operate. While this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. The applicant argued that the circumstances were beyond his control, that he had engaged in administrative and research work, and that he had since received a job offer from a new sponsor, Oates Contracting Pty Ltd. He also raised concerns about the severe hardship and mental health impacts on his family. However, the Tribunal concluded that the purpose of the applicant's travel and stay in Australia was to work, and the visa was granted for him to engage in temporary employment with Essen Building Construction Pty Ltd.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Phan's Subclass 457 visa. The Tribunal found that, considering all the circumstances, the visa should be cancelled. The Tribunal noted that it had no jurisdiction with respect to any other applicants.