Kaur (Migration)

This matter concerned an appeal by a visa holder against the decision of the Minister to cancel their Subclass 457 (Temporary Work (Skilled)) visa. The appeal was heard by the Tribunal, presided over by Member Antonio Dronjic. The dispute arose because the applicant's sponsoring employer, Jillian’s Café Bar Pty Ltd, had its approval as a Standard Business sponsor cancelled under section 140M(1)(a) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether a ground for cancellation existed under section 116(1)(g) of the Act, specifically in relation to regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, which pertains to the cancellation of a visa where the sponsor's approval has been cancelled. If a ground for cancellation was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the cancellation of the sponsoring employer's approval constituted a prescribed ground for visa cancellation under regulation 2.43(1)(l)(iv). Although this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. In doing so, it had regard to policy guidelines, noting that while these guidelines are informative, they are not binding. The Tribunal considered the applicant's purpose for being in Australia, the hardship that cancellation might cause, the circumstances surrounding the ground for cancellation, and the applicant's efforts to secure alternative sponsorship. Despite the applicant's evidence of hardship and the fact that the sponsorship cancellation was beyond their control, the Tribunal was satisfied that the applicant had been afforded sufficient time to secure alternative employment. Ultimately, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that cancellation was the correct and preferable decision.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.