Kaur (Migration)

The applicant, Ms Kaur, sought review of a decision by the Department of Immigration and Border Protection to cancel her subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's sponsor, Curry Khazana Pty Ltd, having its approval as a standard business sponsor cancelled and being subject to a three-year bar on further sponsorship, which constituted a prescribed ground for visa cancellation under regulation 2.43(1)(l)(iv) of the Migration Regulations 1994. The applicant argued that she had done nothing wrong and should be given an opportunity to find a new employer to nominate her for a visa.

The Tribunal was required to determine whether the applicant's subclass 457 visa should be cancelled, considering the discretionary factors outlined in the Act and Regulations. Specifically, the Tribunal had to assess the purpose of the applicant's stay in Australia, her compliance with visa conditions, the hardship that cancellation might cause, the circumstances leading to the cancellation ground, her conduct towards the Department, and any mandatory legal consequences or international obligations arising from a cancellation decision.

The Tribunal affirmed the decision to cancel the visa. It found that while the applicant had resigned from her original sponsor and was seeking new employment, her current employer, Uncle Bart, was unwilling to nominate her for a visa. Despite the applicant's expressed confidence in securing future sponsorship, the Tribunal considered her prospects speculative, as she had not yet secured a new nomination. The Tribunal also noted that the applicant had breached condition 8107(3)(b) of her visa by ceasing employment with her original sponsor for more than 90 days. While acknowledging that the sponsor's actions were outside the applicant's control and that she had been cooperative with the Department, these factors were outweighed by the fact that the subclass 457 visa's purpose is to fill a skill shortage for an approved sponsor, a purpose no longer being met by the applicant. The Tribunal concluded that the applicant's continued presence in Australia without a valid nomination was not in line with the subclass 457 visa program.