Xue (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who held a Subclass 457 visa granted on 23 March 2016, was nominated by Funtown Enterprises Pty Ltd to work as a Chef. The Department received information that the applicant ceased employment with this sponsor on 2 July 2018. Following a Notice of Intention to Consider Cancellation, the applicant responded, stating he was working as a Chef and requesting his visa not be cancelled due to his need to support his wife and newborn child. The delegate subsequently cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had breached visa condition 8107(3)(b) by ceasing employment for more than 90 consecutive days.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act 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 complied with visa condition 8107(3)(b), which stipulates that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The Tribunal also considered whether the circumstances warranted the exercise of discretion to affirm the cancellation, taking into account factors such as the purpose of the visa, the extent of compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal found that the applicant had indeed ceased employment with his sponsoring employer on 2 July 2018, and that this period of unemployment exceeded 90 consecutive days, thereby breaching condition 8107(3)(b). Consequently, the ground for cancellation under section 116(1)(b) was established. In exercising its discretion, the Tribunal noted that the applicant did not provide any evidence to contradict the Department's information or to demonstrate he had secured new employment with an approved sponsor. Despite the applicant's submissions regarding his need to support his family, the Tribunal considered that approximately fifteen months had passed since he ceased employment, providing sufficient time to find a new sponsor. The Tribunal concluded that the applicant's failure to commence employment with a new sponsor represented a significant breach. Weighing all relevant circumstances, the Tribunal determined that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

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