Kaur (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ms Kaur, who sought review of the decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The primary dispute concerned whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. Ms Kaur had ceased employment with her sponsoring employer for more than 90 days, and the position she held no longer existed.

The Tribunal was required to determine two key issues: first, whether a ground for cancellation of the visa existed under section 116(1)(b) of the Migration Act 1958 (Cth), and second, if a ground existed, whether the discretion to cancel the visa should be exercised. The applicant conceded that the ground for cancellation, namely ceasing employment for more than 90 days, was established. Therefore, the Tribunal's focus shifted to the exercise of its discretion.

In considering the exercise of discretion, the Tribunal had regard to all relevant circumstances, including the applicant's inconsistent evidence and lack of cooperation with the Department. Ms Kaur provided conflicting accounts to immigration officials regarding her employment status, initially claiming to be working when she had not been employed since March 2018. The Tribunal found that the applicant was aware of the 90-day employment condition attached to her visa from its grant in 2015, despite her claims of ignorance until later dates. The Tribunal also noted the applicant's previous attempts to secure other nominations and permanent residency, which had been unsuccessful, and the financial decisions made by her and her husband in relation to family businesses without certainty of visa outcomes. The Tribunal concluded that these factors, including the circumstances surrounding the ground for cancellation and the applicant's behaviour, weighed in favour of exercising the discretion to cancel the visa.

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