Chopra (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Ms. Chopra. The cancellation was based on the ground that the nominated position was not genuine, as the applicant's nominating employer, Seifeddine Enterprises Pty Ltd, had ceased trading prior to the nomination's approval. The applicant was unaware of the employer's deregistration and continued to work in the same role at the same location.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(kb)(iii) of the Migration Regulations 1994 (Cth) was established. This involved assessing whether the nominated position for a Cook at La Porchetta in Werribee was genuine, given that the nominating entity, Seifeddine Enterprises, had been deregistered and ceased trading before the nomination was approved. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation was established because the nominating employer had ceased trading prior to the nomination approval, rendering the nominated position not genuine. However, the Tribunal exercised its discretion not to cancel the visa. It accepted the applicant's evidence that she was unaware of the employer's liquidation and had continued to work in the same role, performing the same duties for the same individual, albeit under a different entity. The applicant provided payslips, bank statements, and a group certificate to support her continued employment and regular payment. The Tribunal noted that the applicant had since been informed by her employer that he had been approved as a Standard Business Sponsor for the La Porchetta in Werribee and had not realised the previous situation would affect her visa.

The Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. This outcome provided the applicant with an opportunity to return to Australia and seek an alternative nominating employer, and to have the cancellation removed from her departmental record.