Wang (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The Minister had sought to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth), on the basis that the applicant had allegedly failed to comply with a condition of their visa. The specific condition in question was 8107(3)(a)(i), which requires the holder of a Subclass 457 visa to work only in the occupation listed in the most recently approved nomination.

The legal issue before the Tribunal was whether the applicant had complied with visa condition 8107(3)(a)(i). The delegate's decision to cancel the visa was based on information gathered during a site visit, which suggested that the applicant was performing duties more aligned with a lower-skilled role, such as a waitress with minor supervisory duties, rather than the nominated occupation of Cafe or Restaurant Manager. This led to the conclusion that a significant majority of the applicant's tasks were inconsistent with the nominated occupation, thereby breaching the visa condition.

The Tribunal reasoned that for the ground of cancellation under section 116(1)(b) to be established, the delegate must be satisfied that the applicant did not comply with a visa condition. In this instance, the delegate's satisfaction was based on observations made during a site visit, which indicated that the applicant's actual duties differed substantially from those of a Cafe or Restaurant Manager. However, the Tribunal found that it was not satisfied that the ground for cancellation existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.