Zhou (Migration)

This matter concerned the review of a decision by the Department of Immigration and Border Protection to cancel the applicant's subclass 457 (temporary work (skilled)) visa. The applicant, Mr. Zhou, had been granted the visa on 26 March 2012, sponsored by Gold Leaf Restaurant. He ceased employment with Gold Leaf on 11 August 2013 and subsequently transferred his sponsorship to Golden Fire Pty Ltd. The Department notified Mr. Zhou of its intention to cancel his visa on 14 September 2015, after Golden Fire informed it that he had ceased employment on 21 July 2014, thereby allegedly breaching visa condition 8107(3)(b). Mr. Zhou responded to the notice, detailing allegations of unscrupulous conduct by Golden Fire, including underpayment, demands for money, and termination of employment. The Department ultimately cancelled his visa on 26 February 2016.

The Tribunal was required to determine whether the grounds for cancellation were established and, if so, whether it should exercise its discretion to set aside the cancellation decision. The legal issues included whether Mr. Zhou had breached his visa conditions by ceasing employment for more than 90 consecutive days, and whether the circumstances surrounding his cessation of employment and subsequent unemployment warranted a discretionary decision to affirm the cancellation. The Tribunal also considered the potential hardship to Mr. Zhou and any international obligations Australia might have.

The Tribunal found that Mr. Zhou accepted that he had breached condition 8107(3)(b) by remaining unemployed for more than 90 consecutive days, and therefore the delegate had proper grounds to cancel the visa. However, the Tribunal considered Mr. Zhou's account of mistreatment by Golden Fire, including allegations of underpayment and demands for money, which he presented as a polite and articulate witness. While the Tribunal could not make definitive findings on these allegations, it placed weight on the circumstances leading to the cancellation being, at least in part, out of Mr. Zhou's control. The Tribunal also noted Mr. Zhou's prompt response to the notice of intention to cancel and the absence of other breaches or lack of cooperation. Regarding hardship, the Tribunal accepted that Mr. Zhou might face some difficulty re-integrating into China but found that his fears of prejudicing future visa applications were largely unfounded, as the cancellation would not attract certain public interest criteria preventing future applications.

Ultimately, the Tribunal concluded that the correct and preferable exercise of its discretion favoured affirming the delegate's decision. The Tribunal noted that Mr. Zhou had left Australia and did not wish to remain in Australia to await the outcome of further visa applications. It found that the cancellation was unlikely to prejudice future visa applications and that the hardship arguments carried limited weight. Therefore, the Tribunal affirmed the decision to cancel Mr. Zhou's subclass 457 visa.