KAUR (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been sponsored by VIR Pty Ltd to work as a restaurant manager. The dispute arose when the applicant's sponsor had its approval as a standard business sponsor cancelled by the Department under section 140M of the Migration Act 1958 (Cth) because it ceased trading. Consequently, the applicant was no longer employed by the sponsor and had no new employment or approved nomination. The Administrative Appeals Tribunal (AAT) considered whether the decision to cancel the applicant's visa should be affirmed.

The primary legal issue before the Tribunal was 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. Section 116(1)(g) permits the Minister to cancel a visa if satisfied that a prescribed ground for cancellation applies. In this case, the relevant prescribed ground was found in regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, which states that a visa may be cancelled if the sponsor has been cancelled or barred under section 140M of the Act. The Tribunal also had to consider the applicant's circumstances and intentions in exercising its discretion regarding cancellation.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established because the applicant's sponsor's approval had been cancelled under section 140M(1)(a). While this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretion. The Tribunal noted that the applicant had expressed a desire to remain in Australia permanently, which was contrary to the temporary nature of a Subclass 457 visa. Despite having been granted work rights, the applicant had not secured new employment or a sponsor. Considering these factors, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal stated it had no jurisdiction with respect to any other applicants.