Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa granted to the applicant, Ms. Kaur. The cancellation was based on the grounds that the circumstances for the visa grant no longer existed, specifically that the approved sponsor, Seifeddine Enterprise Pty Ltd ATF The Seifeddine Family Trust, had ceased trading and was therefore not a lawfully operating business at the time the nomination was approved.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(aa) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The evidence indicated that the sponsor had ceased trading in September 2014, prior to the applicant's visa grant on 21 October 2014, meaning the nomination was not made by an approved, lawfully operating sponsor. The applicant provided evidence of her employment as a cook at La Porchetta restaurant from November 2014 until December 2016, with a brief interruption due to renovations, and demonstrated she had been receiving wages and paying tax.

The Tribunal found that the ground for cancellation under s.116(1)(aa) was established, as the visa was granted based on a circumstance that did not exist. However, the Tribunal then considered its discretion regarding cancellation. Applying the principles outlined in its Procedures Advice Manual, which prioritises not cancelling visas where the ground arose from circumstances beyond the visa holder's control, the Tribunal noted the applicant's blamelessness in the predicament. The applicant had worked continuously in the nominated occupation and had complied with her visa conditions. Given these factors, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel Ms. Kaur's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.