Kansal (Migration)

This matter concerned an appeal by the applicant, Ms. Kansal, against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with her sponsoring employer, Cleaning for a Reason, when the business closed down on 14 January 2019. The applicant subsequently failed to secure new employment with a sponsoring employer, and the period of unemployment exceeded 60 consecutive days, which is a ground for visa cancellation under the relevant migration legislation. The Administrative Appeals Tribunal (AAT) affirmed the decision to cancel the visa.

The primary legal issue before the Tribunal was whether it should exercise its discretion to set aside the cancellation of the applicant's visa. The Tribunal was required to consider the circumstances of the case, including the applicant's submissions regarding employment fraud, emotional and financial suffering, and her long-term objective of working in a creative field. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal reasoned that the Subclass 457 visa was granted with the expectation that the applicant would work for her sponsoring employer until its expiry date. The closure of the sponsoring business and the applicant's subsequent failure to find alternative sponsorship, leading to an extended period of unemployment, weighed against the exercise of discretion in her favour. While acknowledging the applicant's claims of hardship and fraud, the Tribunal found that these circumstances did not outweigh the grounds for cancellation, particularly given the finite nature of the visa and the breach of its conditions.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.