Amandeep Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Amandeep Kaur. The applicant's husband and son's visas were automatically cancelled as a consequence of the cancellation of Ms Kaur's visa, and the Tribunal noted it had no jurisdiction to review those consequential cancellations. The applicant was granted the visa in February 2015, valid until February 2019, to work as a hairdresser for a sponsor, CH Luxe Pty Ltd AYF the CH Luxe Trust. The sponsoring business ceased trading and the applicant ceased employment on 18 April 2018. A notice of intention to consider cancellation was issued in January 2019, and the applicant's visa was cancelled on 31 January 2019.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The relevant ground for cancellation was under s 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder does not comply with a condition of their visa. Condition 8107(3)(b) stipulated that if a visa holder ceases employment, the period of cessation must not exceed 90 consecutive days. The Tribunal also considered the applicant's submissions and the Department's Procedures Advice Manual (PAM3) in exercising its discretion, noting that PAM3 guidelines are advisory and not legally binding.

The Tribunal found that the applicant ceased employment on 18 April 2018 and that the period of cessation exceeded 90 consecutive days, thereby establishing the ground for cancellation under s 116(1)(b). In considering the exercise of discretion, the Tribunal noted that the purpose of the Subclass 457 visa is for temporary skilled work. While acknowledging the applicant's unfortunate loss of employment and unsuccessful attempts to find new employment, the Tribunal found that the applicant was not employed by an approved sponsor in a nominated position. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the cancellation was the correct and preferable decision.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled.