Kaur (Migration)

This matter concerned the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 14 December 2016, sponsored by Awadesh Bakery and Restaurant Pty Ltd, to work as a Cook. The visa was subject to condition 8107, which stipulated that if the applicant ceased employment, the period must not exceed 60 consecutive days. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation on 15 January 2018, after receiving advice that the applicant had ceased employment on 3 August 2017, potentially breaching condition 8107. The applicant responded to this notice, and the Tribunal was required to determine whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether to exercise the discretion to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth), given that the ground for cancellation, namely the breach of visa condition 8107, had been established. The Tribunal also had to consider all relevant circumstances, including government policy as outlined in the Department’s Procedures Advice Manual (PAM3), although it was not bound by such policy.

The Tribunal found that the ground for cancellation under s.116(1)(b) existed, as the applicant had ceased employment for more than 60 consecutive days. However, the Tribunal then considered the exercise of its discretion. It gave considerable weight to the applicant's efforts to secure new employment and sponsorship. Specifically, the Tribunal noted that the applicant had actively sought new employment and had obtained an approved nomination from RRK Group Pty Ltd for a Cook position at Spicy Affair restaurant, which was consistent with the purpose of the skilled visa scheme. The applicant was ready to commence this role as soon as her visa issues were resolved.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.