ZHANG (Migration)

The applicant, Mr. Zhang, sought review of the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) for failing to comply with a condition of his visa, specifically condition 8107, which requires holders of a Subclass 457 visa to not cease employment for more than 90 consecutive days. The applicant argued that his dismissal by his sponsor, Altius Mining Ltd, was unlawful and that his employment had not properly terminated, thus he had not ceased employment for the purposes of the condition.

The Tribunal was required to determine whether the applicant had breached condition 8107 of his visa by ceasing employment for more than 90 consecutive days, and if so, whether the power to cancel the visa should be exercised. The central legal issue was whether the lawfulness of the termination of employment was relevant to the assessment of a breach of condition 8107.

The Tribunal reasoned that condition 8107 does not require an inquiry into the lawfulness of the employment termination. Instead, it focuses on whether the employment that formed the basis of the approved nomination has ceased for more than 90 consecutive days. The Tribunal accepted that the applicant's employment ceased around 28 May 2015, and that this cessation exceeded the 90-day limit. The Tribunal considered the applicant's circumstances, including his efforts to find new employment and sponsorship, but found that he had not secured a new sponsor or an approved nomination. The Tribunal concluded that the applicant had ample time to make arrangements for departure or to seek an alternative lawful basis for his stay in Australia. The Tribunal affirmed the decision to cancel the applicant's visa.