Zhang (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr Zhang. The decision was made by the Administrative Appeals Tribunal (AAT), with Michelle East presiding as Member. The core of the dispute revolved around the cancellation of the applicant's visa due to the cancellation of his sponsor's approval under section 140M of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Act, read with regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, was made out. This involved assessing whether the applicant's sponsor had been cancelled or barred under section 140M. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was made out because the applicant's sponsor, Global Fabricating Pty Ltd, had its approval cancelled under section 140M. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It acknowledged that while departmental policy and procedural instructions could be a useful starting point, they were not legally binding. The Tribunal noted that the applicant had been unable to secure a new nomination after his sponsor's approval was cancelled and a subsequent nomination by Sunrise Engineering Pty Ltd was refused. The applicant's reliance on borrowed funds and the return of his younger daughter to China were also considered.

Ultimately, the Tribunal affirmed the decision to cancel Mr Zhang's Subclass 457 visa, concluding that, considering all the circumstances, cancellation was warranted. The Tribunal noted it had no jurisdiction concerning any other applicants.