Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel Ms Jasminder Kaur's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the Minister's satisfaction that Ms Kaur had not complied with condition 8107(3)(a)(i) of her visa, which required her to work only in the occupation listed in her most recently approved nomination, that of Cafe or Restaurant Manager. The Department's delegate had formed the view that Ms Kaur was performing duties inconsistent with this nominated occupation, specifically those of a food and beverage attendant.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established. This involved assessing whether Ms Kaur had, in fact, failed to comply with the condition of her visa by working in an occupation other than that for which it was granted. The Department's delegate relied on a site inspection report, which detailed interviews with unidentified employees and observations made on a quiet day, suggesting Ms Kaur was performing tasks such as serving food and rearranging tables, rather than managerial duties.

The Tribunal found that the evidence gathered during the site inspection was insufficient to satisfy it that the ground for cancellation existed. The inspection report was based on a short observation period and interviews with employees whose identities were not disclosed. In contrast, the Tribunal considered documentary and oral evidence provided by Ms Kaur and the business owner. Ultimately, the Tribunal was not satisfied that Ms Kaur had failed to work in her nominated occupation and therefore concluded that the power to cancel her visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Kaur's visa.