Kaur (Migration)

The Administrative Appeals Tribunal (AAT) considered a case involving an applicant whose Subclass 457 (Temporary Work (Skilled)) visa was subject to cancellation. The dispute arose after the applicant ceased employment with her approved sponsor, F Massan Pty Ltd, and subsequently faced difficulties securing a new approved nomination for another visa. The applicant alleged that her employer required her to perform duties outside her position description and that she had not been paid superannuation for a period.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the applicant's visa should be exercised. The Tribunal was required to assess the applicant's immigration history, her claims regarding her employment, and her efforts to secure alternative sponsorship.

In its reasoning, the Tribunal found that the ground for cancellation under s 116(1)(b) was satisfied. While not a mandatory cancellation, the Tribunal considered relevant circumstances in exercising its discretion. It noted the applicant's immigration history, including her initial arrival on a student visa and subsequent grant of a Subclass 457 visa based on sponsorship by F Massan Pty Ltd. The Tribunal found a lack of evidence to corroborate the applicant's claims about her employer's conduct or her attempts to notify authorities. Furthermore, the Tribunal noted the refusal of a subsequent Subclass 187 visa application based on a prospective sponsorship with Brisbane Career College Pty Ltd, and the applicant's uncertainty regarding that sponsor's continued interest.

Ultimately, the Tribunal concluded that, considering all the circumstances, the applicant's Subclass 457 visa should be cancelled. The Tribunal affirmed the decision to cancel the visa.