Kaur (Migration)

The applicant, Ms Kaur, sought review of a decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on 13 July 2015, valid until 13 July 2019, based on a nomination by Happy Point Investment Pty Ltd for the occupation of Cook. The Department initiated cancellation proceedings after being notified that Ms Kaur had ceased employment with Happy Point Investment Pty Ltd on 18 November 2015, which appeared to constitute a breach of visa condition 8107(3)(b) by exceeding the 90-day period of non-employment.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether it was in the best interests of the child and other relevant factors to exercise the discretion not to cancel the visa. Specifically, the Tribunal had to consider the applicant's compliance with visa conditions, the hardship that cancellation would cause to her and her family, her past and present behaviour, and the legal consequences of cancellation.

The Tribunal found that while Ms Kaur had indeed ceased employment with her original sponsor for more than 90 days, this occurred because the business was sold and the new owners did not continue her sponsorship. Ms Kaur had actively sought new sponsorship and had a nomination lodged with the Department by a new employer, Two Leos Pty Ltd, which was under active consideration. The Tribunal also took into account that Ms Kaur's son, born in Australia, was enrolled in Grade 1 and had no prior schooling in India, making his removal from the Australian education system highly disruptive. Furthermore, Ms Kaur had no adverse dealings with the Department previously, and cancellation could lead to a three-year bar under Public Interest Criterion 4014. Considering these factors, including the applicant's efforts to secure new employment and the significant hardship to her child, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Kaur's Subclass 457 visa.