Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first applicant, Ms Kaur. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction in relation to the second applicant. The primary dispute centred on whether Ms Kaur had breached a condition of her visa by working for an employer other than her sponsor and outside her nominated occupation.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether Ms Kaur had failed to comply with condition 8107 of her visa. This condition stipulated that the visa holder must work only in the occupation listed in the most recently approved nomination and only in a position within the business of the sponsor or an associated entity, with a cessation of employment not exceeding 90 consecutive days. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal found that Ms Kaur had not complied with condition 8107. Evidence indicated she ceased employment with her sponsoring business in September 2016 and, from October 2016 until February 2017, worked at Big Fields Fruit Deli, which was neither her nominated occupation nor the business of her sponsor. The Tribunal was not satisfied with Ms Kaur's claim of ignorance regarding the visa conditions, noting she had received a visa grant letter explaining them. Having found that the ground for cancellation existed, the Tribunal then considered its discretion, taking into account the circumstances of the case and departmental policy, though noting that such policy was not legally binding. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. As previously noted, the Tribunal determined it had no jurisdiction with respect to the second applicant.