JASBIR KAUR (Migration)

This matter concerned an appeal by Jasbir Kaur against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because Ms Kaur ceased employment with her sponsoring business, Bay Side Streaky Bay Restaurant, on 1 February 2018, and the sponsoring business subsequently ceased operating. Ms Kaur did not secure new employment within the prescribed 90-day period. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether Ms Kaur had complied with condition 8107(3)(b) of her visa, which mandates that a visa holder must not remain unemployed for more than 90 days after ceasing employment. The Tribunal also considered whether, having found a ground for cancellation, it should exercise its discretion to affirm the cancellation decision, taking into account all relevant circumstances.

The Tribunal found that Ms Kaur ceased employment on 1 February 2018, when her sponsoring business closed. Despite a conflicting statement from her previous employer regarding her last paid date, the Tribunal accepted the cessation date of 1 February 2018, as confirmed by Ms Kaur and the closure of the restaurant. As Ms Kaur did not recommence employment until 11 February 2019, a period significantly exceeding 90 days had elapsed. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. In exercising its discretion, the Tribunal considered Ms Kaur's subsequent attempts to secure alternative visas and her eventual re-employment, but concluded that the circumstances warranted affirming the cancellation.

The Tribunal affirmed the decision to cancel Ms Kaur's Subclass 457 visa. The Tribunal noted it had no jurisdiction with respect to any other applicants.