Jyoti (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of the applicant, Jyoti. The dispute arose from the applicant's alleged non-compliance with a condition of her Subclass 457 visa, specifically condition 8107(3)(b), which stipulated that a visa holder must not cease employment for more than 60 consecutive days. The Minister had cancelled the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine two primary issues: first, whether the ground for cancellation under section 116(1)(b) of the Act was made out, and second, if so, whether the applicant's visa should be cancelled, considering all relevant circumstances. The applicant's employment with Desi Touch Sunny's Hair Salon was terminated on 19 June 2019, and she stated she had not worked since. The visa was cancelled on 16 December 2019, meaning the applicant was unemployed for approximately 179 days, significantly exceeding the 60-day limit.

The Tribunal reasoned that the applicant was in breach of visa condition 8107(3)(b) for 119 days, thus satisfying the ground for cancellation under section 116(1)(b). As this ground did not mandate cancellation, the Tribunal then considered its discretion. The applicant submitted that she and her family did not wish to return to India, expressing particular concern for her son's assimilation into Indian society given his long-term residence and education in Australia. She also explained her reasons for not seeking new employment, including spending time with her son, uncertainty about job availability due to COVID-19, and advice from her lawyer that her previous occupation was no longer a nominated occupation. However, the Tribunal noted that the applicant had not made efforts to comply with her visa conditions well before the pandemic became apparent and had not actively sought alternative employment as suggested by her email to the Department.

The Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be affirmed. The Tribunal affirmed the cancellation of the Subclass 457 visa but stated it had no jurisdiction concerning other applicants.