Zhen (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first-named applicant. The dispute arose from the applicant ceasing employment for more than 90 consecutive days, which is a breach of a condition attached to the visa. The applicant had been employed as a bricklayer, but his employment ceased due to a company restructure. A nomination by a new company, APC, was not approved, and it was determined that APC was not an associated entity of the original sponsor.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically concerning the breach of visa condition 8107. This condition required the visa holder to work only in the occupation listed in the most recently approved nomination and, if the sponsor was a standard business sponsor, to work only in the position within the sponsor's business or an associated entity. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if the ground for cancellation was established.

The Tribunal found that the applicant had breached condition 8107 by ceasing employment for more than 90 consecutive days and by not working in a position within the original sponsor's business or an associated entity, as the new company, APC, was not considered an associated entity. Despite acknowledging that the breach was not due to the applicant's fault and that hardship would be caused to the applicant and his family, the Tribunal exercised its discretion to cancel the visa. The Tribunal reasoned that the visa was temporary, the original employment had ceased, and there was no indication of an approved nomination for future work in Australia.

The Tribunal affirmed the decision to cancel the first-named applicant’s Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants.