Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Business (Long Stay)) visa held by the first applicant, Ms Kaur. The other applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review those cancellations. The primary ground for cancellation was that Ms Kaur had ceased employment with her sponsoring business, Job Capital Pty Ltd, on 30 April 2019, and this cessation of employment exceeded the 60 consecutive days permitted by condition 8107(3)(b) of her visa.

The legal issues before the Tribunal were whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was also required to consider Ms Kaur's request for a postponement of a scheduled video hearing, which was supported by a medical certificate stating she was unfit for work for two days. The Tribunal had to determine if this certificate sufficiently demonstrated her inability to participate in a video hearing.

The Tribunal found that Ms Kaur had indeed breached visa condition 8107(3)(b) by exceeding the 60-day limit for cessation of employment. Regarding the postponement request, the Tribunal was not satisfied that the medical certificate provided sufficient evidence of her inability to attend a video hearing, as it did not specify the nature of her condition or explain why she could not participate remotely. In considering the exercise of discretion, the Tribunal noted that while policy guidelines could be a useful starting point, they were not legally binding. The Tribunal concluded that the purpose of Ms Kaur's visa no longer existed, as she had ceased employment and remained in Australia without evidence of securing alternative sponsorship. Weighing the reasons for cancellation against the reasons for not cancelling, the Tribunal found that the former outweighed the latter.

Consequently, the Tribunal affirmed the decision to cancel Ms Kaur's Subclass 457 visa. The Tribunal also reiterated that it had no jurisdiction with respect to the other applicants whose visas were cancelled as a consequence of the first applicant's visa cancellation.