Kaur (Migration)

This matter concerned an appeal by the applicant, Ms Kaur, against the decision of the Minister to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which requires a holder of a Subclass 457 visa granted on the basis of an approved nomination not to cease employment for more than 60 consecutive days. The applicant had been granted the visa based on an approved nomination with JZ Business Enterprises Pty Ltd, but ceased employment with that company on or about 2 April 2019. The decision was reviewed by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to assess whether the applicant had complied with visa condition 8107(3)(b) by not ceasing employment for more than 60 consecutive days, and if not, whether the cancellation of the visa was warranted in all the circumstances.

The Tribunal found that the ground for cancellation was established. While the applicant contended she was not officially terminated and did not receive a termination letter, she conceded that her sponsor had stopped paying her and did not dispute that she had not worked for JZ Business Enterprises Pty Ltd after 2 April 2019. This meant she had ceased employment for a period exceeding 60 consecutive days. In exercising its discretion, the Tribunal considered the purpose of the Subclass 457 visa, which is to enable temporary skilled work for an approved sponsor. The Tribunal noted that the applicant had not secured another approved nomination since ceasing employment over one year and nine months prior, and that this failure to fulfil the visa's purpose weighed heavily in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to any other applicants.