Brar (Migration)

This matter concerned an application to review a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first named applicant, Ms. Brar. The cancellation was based on the ground that Ms. Brar had ceased employment with her sponsor for a period exceeding 90 consecutive days, thereby breaching a condition of her visa. The original decision maker was not satisfied that Ms. Brar had been employed in her nominated position since December 2016 and found that she had not been employed for more than 90 consecutive days.

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. This provision allows for visa cancellation if the holder fails to comply with a visa condition. Specifically, the Tribunal had to assess whether Ms. Brar had complied with condition 8107, which mandates that a visa holder must not cease employment for more than 90 consecutive days.

The Tribunal considered evidence from Ms. Brar and her sponsor, Ms. Luu. Ms. Luu explained that her original café business ceased trading in February 2018, and Ms. Brar continued her employment with her at a new business, which commenced operations in September 2018. During the period between the closure of the original café and the opening of the new business, Ms. Brar assisted with essential preparatory tasks for the new venture, including menu research, staff recruitment and training, and ensuring compliance with health standards. The Tribunal found that Ms. Brar's employment with Ms. Luu had been continuous from April-May 2015 until the date of the hearing, with a period of unpaid maternity leave commencing in February 2019.

Based on this evidence, the Tribunal concluded that the ground for cancellation under section 116(1)(b) was not satisfied, as Ms. Brar had not ceased employment for more than 90 consecutive days. Consequently, the power to cancel her visa did not arise. The Tribunal set aside the decision to cancel Ms. Brar's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.