Kaur (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of Ms Kaur. The cancellation was based on the ground that the Minister was satisfied that the applicant was not working in her nominated occupation as a cook, but rather as a waitress, cleaner, and bartender. This alleged misrepresentation of her employment circumstances was purportedly based on information received from an anonymous informant.

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 made out. This section allows for visa cancellation if the Minister is satisfied that the visa was granted based on a fact or circumstance that no longer exists or is no longer true. The Tribunal was required to determine if the evidence presented, particularly the anonymous information, was sufficiently reliable to satisfy the Minister that the applicant was not genuinely working as a cook.

The Tribunal reasoned that the information provided by the anonymous informant was inherently unreliable. The informant alleged that the applicant was instructed by her employer to pretend to be a chef during a Departmental visit, while her actual duties were those of a waitress, cleaner, and bartender. However, the applicant provided a detailed explanation of her role, acknowledging that she occasionally assisted with serving meals in the initial months of a new restaurant's operation to ensure its success, but maintained that her primary duties were cooking and meal preparation. Crucially, the Tribunal found that the anonymous evidence lacked the necessary corroboration or independent verification to establish the alleged misrepresentation. Without reliable evidence to support the claim that the applicant was not working as a cook, the Tribunal concluded that the ground for cancellation under s 116(1)(b) was not established.

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