Kaur (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms Kaur's Subclass 186 Employer Nomination Scheme visa. The dispute arose because the Department of Immigration and Border Protection alleged that Ms Kaur had failed to notify them of a change in circumstances, specifically that her sponsoring employer, Cafe Kathmandu Pty Ltd, had ceased trading prior to the grant of her visa. The Tribunal was tasked with determining whether Ms Kaur had indeed failed to comply with her notification obligations under section 104 of the Migration Act 1958 and, if so, whether her visa should be cancelled.

The Tribunal was required to assess whether Ms Kaur was aware that her sponsoring employer had ceased trading before her visa was granted and whether she had a duty to inform the Department of this change. The Department's position was that Cafe Kathmandu Pty Ltd was no longer trading as of 5 December 2014, three days before Ms Kaur's visa was granted on 8 December 2014, and that Ms Kaur would have been aware of this cessation of trading. The Department contended that by failing to notify them of this change, Ms Kaur had breached section 104 of the Act, rendering her visa liable for cancellation under section 109.

However, Ms Kaur provided evidence, including statutory declarations and letters from third parties, asserting her unawareness of her employer's financial difficulties and cessation of trading. She claimed to have continued working as a cook until 19 December 2014 and that the restaurant continued to trade until 11 February 2015. The Tribunal found this evidence credible, particularly sworn evidence from witnesses who recalled being served by Ms Kaur at the restaurant in mid-December 2014. Based on this evidence, the Tribunal concluded that there was no non-compliance by Ms Kaur as particularised in the notice issued under section 107 of the Act.

Consequently, the Tribunal found that the discretionary power to cancel Ms Kaur's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Kaur's Subclass 186 visa.