Yang (Migration)

This matter concerned an application by Mr. Yang for review of a decision to cancel his Temporary Work (Skilled) (Subclass 457) visa. The cancellation was based on a breach of visa condition 8107, specifically that Mr. Yang had ceased employment for more than 60 consecutive days. The dispute arose because the approved nominator employer, The Website Marketing Group, was sold, and while Mr. Yang continued his employment with the new owners under a new ABN, this change in ownership was the catalyst for the perceived breach.

The Administrative Appeals Tribunal was required to determine whether the cancellation of Mr. Yang's visa was the correct and preferable decision. This involved considering the circumstances surrounding the alleged breach of condition 8107, particularly whether the events leading to the cessation of employment were beyond the applicant's control, and assessing the weight to be given to various factors in exercising the discretion to cancel a visa. The Tribunal was to consider factors such as the purpose of the visa holder's stay, the extent of compliance with visa conditions, the degree of hardship that cancellation might cause, and the applicant's past and present behaviour towards the Department.

The Tribunal reasoned that the sale of the sponsoring company and the subsequent continuation of employment under a new, but essentially related, entity were circumstances beyond Mr. Yang's control. The Tribunal found that Mr. Yang had not breached any other visa conditions and would suffer significant hardship if the cancellation were affirmed. Furthermore, there was no evidence of adverse behaviour towards the Department. Applying the Department's Procedures Advice Manual, which suggests that a visa should generally not be cancelled where the ground for cancellation arose beyond the visa holder's control, the Tribunal gave significant weight to these factors against cancellation.

The Tribunal concluded that the decision to cancel Mr. Yang's visa was not the correct or preferable decision. Accordingly, the decision under review was set aside and remitted to the delegate of the Minister for reconsideration in accordance with the Tribunal's findings.