Xiao (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been sponsored by Alphabred for a position as a Customer Service Manager. The cancellation was based on the ground that the nominated position was not genuine, as prescribed by regulation 2.43(1)(kb)(iii) of the Migration Regulations 1994. The applicant argued that while the business had downsized and she was working from home, the position remained genuine and she was being paid correctly.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if the position of Customer Service Manager was genuine, given that the sponsoring employer, Alphabred, no longer maintained a physical office space at the nominated address and the applicant was working remotely. The Tribunal also had to consider the applicant's personal circumstances, including her daughter's schooling in Australia, and the purpose of the Subclass 457 visa.

The Tribunal found that the ground for cancellation existed because the evidence indicated that the nominated position was not genuine. While the applicant provided evidence of her employment and payment, the lack of a physical office space and the applicant working from home, coupled with the significant downsizing of the company, led the Tribunal to conclude that the position did not meet the requirements of a genuine role. In exercising its discretion, the Tribunal gave significant weight to the purpose of the Subclass 457 visa, which is to address genuine skill shortages, and found that this purpose was not being met in this instance. The Tribunal acknowledged the hardship to the applicant's daughter regarding her schooling but concluded that this did not outweigh the primary considerations supporting cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.