ZHAN (Migration)

This matter concerned an appeal by the applicant, ZHAN, against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled by the Department of Immigration on the grounds that the applicant had failed to comply with a condition of his visa, specifically condition 8107(3)(aa), which required him to commence employment with his sponsoring employer, Quickway Constructions Pty Ltd, within 90 days of his arrival in Australia. The applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department, and his visa was subsequently cancelled on 16 November 2017. The Tribunal affirmed the decision to cancel the visa.

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. The Tribunal was required to determine if the applicant had failed to comply with condition 8107(3)(aa) of his visa, which mandated commencement of employment with his sponsor within 90 days of arrival. The Tribunal also had to consider all relevant circumstances in exercising its discretion to cancel the visa, including matters outlined in the Department's Procedures Advice Manual.

The Tribunal found that the applicant had breached condition 8107(3)(aa) as there was no evidence that he commenced employment with Quickway Constructions Pty Ltd within 90 days of his arrival in Australia on 16 December 2015. The sponsoring employer had provided evidence that the applicant never commenced employment with them. The Tribunal noted that the applicant failed to respond to the NOICC and did not provide any evidence to rebut the delegate's finding of a breach. In exercising its discretion, the Tribunal considered the applicant's non-compliance with visa conditions as weighing in favour of cancellation. It also found that it was the applicant's responsibility to be aware of and comply with his visa conditions, including through the Visa Entitlement Verification Online (VEVO) facility, and that no evidence of hardship if the visa were cancelled had been adduced.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to other applicants.