Kaur (Migration)

The applicant, Ms Kaur, sought review of a decision to cancel her Subclass 600 (Visitor) visa. The Minister had cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth), on the basis that the applicant had engaged in work in Australia, thereby breaching a condition of her visa. The applicant contended that she had not engaged in work and had not breached her visa conditions.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was made out. This required the Tribunal to determine if the applicant had, in fact, engaged in work in Australia, contrary to condition 8101 of her visa. The Tribunal also considered whether, even if a ground for cancellation existed, the decision to cancel the visa was appropriate in all the circumstances.

The Tribunal considered the applicant's evidence, which detailed her presence in Australia to care for her ill daughter. The applicant explained that while on her way to a doctor, she briefly entered a factory at the invitation of her daughter's friend. She stated she was only there to observe and was offered two cauliflowers for free, which she accepted. She denied being offered employment or performing any work. The Tribunal found the applicant's explanation credible and noted that the factory owner and manager had reportedly denied to departmental officers that the applicant was ever employed there. Crucially, the Tribunal was not satisfied that the applicant had engaged in work in contravention of her visa conditions.

Consequently, the Tribunal concluded that the ground for cancellation under section 116(1)(b) was not established. The Tribunal therefore set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.