Xu (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Xu. The applicant had arrived in Australia in February 2017, intending to work as a bricklayer for Rock Build Developments Pty Ltd. However, the applicant never commenced employment with the nominated employer and instead worked as a tiler. The Department of Home Affairs had cancelled the applicant's visa, and this decision was under review by 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, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with a condition of his visa, and if that failure warranted cancellation, considering all relevant circumstances.

The Tribunal found that the applicant had failed to comply with visa condition 8107(3)(b), which requires a visa holder to commence employment with their sponsoring employer within 90 days of arrival. The applicant admitted he never commenced work with Rock Build Developments Pty Ltd and had instead worked as a tiler since his arrival. The Tribunal considered this a significant factor in favour of cancellation, particularly as the applicant had not approached the Department to discuss his change in circumstances. While the applicant raised potential hardship, the Tribunal noted his ability to secure alternative employment in Australia and the fact that his visa was obtained to address a skills shortage in bricklaying, an occupation he never pursued.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Xu's Subclass 457 visa. The Tribunal stated it had no jurisdiction concerning any secondary visa applicants.