Yang (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was granted on 4 November 2016, based on a nomination for the occupation of Building Associate. The Department issued a Notice of Intention to Consider Cancellation on 15 April 2019, alleging a breach of visa condition 8107(3)(b), which required the applicant not to cease employment with his sponsor for more than 90 days without resuming employment with that sponsor or an associated entity, or finding a new sponsor. The applicant ceased employment with his sponsor on 3 May 2017.

The legal issues before the Tribunal were whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had complied with visa condition 8107(3)(b) and, if not, to consider all relevant circumstances in deciding whether to affirm the cancellation.

The Tribunal found that the applicant's own statement indicated he ceased employment with his sponsor in May 2017, thereby breaching condition 8107(3)(b). As this ground did not mandate cancellation, the Tribunal then considered its discretion. It noted the applicant had not provided any evidence of compelling or compassionate circumstances, nor had he provided any information about finding a new sponsor or the hardship he might face if his visa were cancelled. The Tribunal concluded that the non-compliance with the visa condition was substantial, given the applicant had worked for his sponsor for only approximately six months of a four-year visa and had remained in Australia for over two years without an approved sponsor.

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