Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Business Entry) visa held by the applicant, Ms. Kaur. The cancellation was initiated following the cancellation of her employer's approval as a standard business sponsor. Ms. Kaur had been nominated for the visa by AA & DD Pty Ltd, trading as The Glassi Junction, but this sponsorship was cancelled, and the company barred from future applications. A new prospective employer subsequently lodged a nomination application for Ms. Kaur, which was later refused.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The relevant ground for cancellation under regulation 2.43(1)(l) of the Migration Regulations 1994 (Cth) concerned the cancellation of the applicant's sponsor's approval. The Tribunal found that this ground for cancellation was indeed established.

In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including her long-term residence in Australia since 2008, her work history as a cook, her marriage, and the birth of twin daughters in Australia. The Tribunal noted that the applicant had secured new employment and a nomination application had been lodged by a prospective employer, although this application was refused. Despite acknowledging that the Subclass 457 visa was intended for temporary skilled employment, the Tribunal found that the applicant had demonstrated a compelling need to remain in Australia due to her family circumstances and the potential for better educational opportunities for her children. Coupled with no known visa condition breaches, 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 the second applicant.