Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Ms Kaur. The cancellation was a consequence of her ceasing employment with her sponsoring business, CH Luxe Pty Ltd AYF the CH Luxe Trust, on 18 April 2018, and failing to secure new employment or nomination within the prescribed 90-day period. The visas of other applicants were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review those cancellations.

The primary legal issue before the Tribunal was whether the decision to cancel Ms Kaur's visa should be affirmed. This required the Tribunal to determine if the ground for cancellation, specifically the breach of visa condition 8107(3)(b) by exceeding the 90-day period of unemployment, was established. If the ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing the circumstances of the case against the reasons for not cancelling it.

The Tribunal found that Ms Kaur did not comply with condition 8107(3)(b) as she ceased employment on 18 April 2018 and remained unemployed for a period exceeding 90 consecutive days. Consequently, the ground for cancellation under s 116(1)(b) of the Act was made out. In considering the exercise of discretion, the Tribunal acknowledged the applicant's submissions regarding her son's impending Australian citizenship and her pregnancy, as well as the purpose of the Subclass 457 visa. However, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the applicant was not employed by an approved sponsor and had not been nominated for a position.

The Tribunal affirmed the decision to cancel Ms Kaur's Subclass 457 visa. It also noted that it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled.