Kaur (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute concerned whether the nominated position for which the visa was granted was genuine, as required by the Migration Regulations 1994.

The Tribunal was required to determine if a ground for cancellation existed under section 116(1)(g) of the Migration Act 1958, specifically whether the nominated position associated with the Subclass 457 visa was genuine, as stipulated in regulation 2.43(1)(kb)(iii). The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the nominated occupation of Café and Restaurant Manager, as described in the relevant instrument, included organising and controlling operations to provide dining and catering services, and involved tasks such as planning menus, organising functions, and supervising staff. Crucially, the occupation description also contained a caveat excluding positions in Fast Food or Takeaway Food Service. The evidence indicated that the position was at a fast food and takeaway service with no dining facilities, and the applicant's duties did not align with the full range of tasks for the nominated occupation, nor did they involve supervision of waiting staff. Furthermore, the applicant was observed working at other locations. Based on these findings, the Tribunal was satisfied that the ground for cancellation existed. In exercising its discretion, the Tribunal considered various factors, including the purpose of the applicant's stay, her compliance with visa conditions, and the circumstances surrounding the ground for cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning other applicants.