ZHANG (Migration)

This matter concerned an appeal by Mr. Zhang against the decision of the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The visa was granted on the basis of sponsorship by Anshan, and a condition of the visa (condition 8107(3)) required Mr. Zhang to work only for his sponsor or an associated entity, and not to cease employment for more than 90 consecutive days. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal considered whether Mr. Zhang had complied with his visa conditions. It found that Mr. Zhang's sponsor, Anshan, was voluntarily deregistered by the Australian Securities and Investments Commission on 28 October 2015, ceasing to exist as a legal entity. Mr. Zhang acknowledged that his employment with Anshan ceased in October 2015, and he subsequently moved to Sydney to work with another company, Max Construction. The Tribunal determined that Mr. Zhang breached condition 8107(3)(b) by ceasing employment with Anshan and not resuming employment within 90 days. Furthermore, the Tribunal found that Mr. Zhang breached condition 8107(3)(a)(ii) by working for Max Construction, which was not his sponsor or an associated entity.

Having found that grounds for cancellation existed under section 116(1)(b) of the Migration Act 1958, the Tribunal then considered its discretion. It noted that Mr. Zhang's visa was due to expire in December 2017 and that no nomination applications were pending. The Tribunal found that Mr. Zhang had breached multiple visa conditions over an extended period, demonstrating a disregard for Australian immigration law. While acknowledging that the cessation of Anshan's operations was beyond Mr. Zhang's control, the Tribunal found that his failure to seek advice from migration advisers or the Department weighed in favour of cancellation. The Tribunal also considered the financial hardship alleged by Mr. Zhang, including payments made for sponsorship, but found this would not be significant given his family remained in China and he had work experience.

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