Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Ms Kaur, a holder of a Subclass 457 (Temporary Work (Skilled)) visa, whose visa was subject to potential cancellation by the Department of Home Affairs. The dispute arose when the Department received information suggesting Ms Kaur had ceased employment with her sponsor, The Neem Groceries and Food Pty Ltd, for a period exceeding 90 consecutive days, thereby potentially breaching a condition of her visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. This section permits the Minister to cancel a visa if satisfied that the holder has not complied with a condition of their visa. In this instance, the relevant condition was subparagraph (3)(b) of condition 8107, which mandates that a visa holder's employment with their sponsor must not cease for more than 90 consecutive days.

The Tribunal reasoned that while the sponsor company had been de-registered, leading to a period where the applicant's employment technically ceased, this was due to administrative oversight by the sponsor's accountant regarding a re-registration fee. The applicant provided evidence, including payslips and statements from her employer and their accountant, indicating she had not left her job and continued to be paid. She also explained that the company was in the process of being reinstated with ASIC. Crucially, the Tribunal found that the applicant herself was not at fault and had not intentionally breached the visa condition. Therefore, the Tribunal was not satisfied that the ground for cancellation under s 116(1)(b) had been made out.

Consequently, the Tribunal set aside the Department's decision to cancel Ms Kaur's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning a second applicant.