Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) Subclass 457 visa held by the applicant, Ms Kaur. The dispute arose from the Minister's satisfaction that Ms Kaur had breached a condition of her visa, specifically condition 8107(3)(a)(i), which requires the visa holder to work only in the position nominated by their approved sponsor or an associated entity. The delegate who cancelled the visa formed the view that Ms Kaur was not employed in the nominated position of Customer Service Manager by her sponsor, Australian Sports Academy Pty Ltd (ASA).

The Tribunal was required to determine whether the ground for cancellation, namely the alleged breach of visa condition 8107(3)(a)(i), was made out. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should remain cancelled, taking into account all relevant circumstances. The Tribunal noted that the cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) did not mandate cancellation under s.116(3).

The Tribunal considered evidence regarding visits by Department of Immigration and Border Protection officers to ASA's premises, where Ms Kaur was not present. However, Ms Kaur provided an explanation that ASA was in the process of relocating, which accounted for her absence. The Tribunal also considered the purpose of Ms Kaur's travel and stay in Australia, noting her history of student and bridging visas before obtaining the Subclass 457 visa for temporary work. It also took into account a positive skills assessment provided by Ms Kaur, dated after a previous nomination refusal, and the general purpose of the Subclass 457 visa.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel Ms Kaur's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.