Khansorn (Migration)

The Administrative Appeals Tribunal considered the case of Khansorn, the applicant, who sought review of the Minister's decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was granted on the basis of a nomination by Lester P Holdings Pty Ltd, trading as Bondi Nuad Thai and Spa, for the occupation of Massage Therapist, and was valid until 5 August 2020. The Department of Immigration received information that the applicant had commenced employment with a different employer, RBUY Pty Ltd trading as Wagga Thai Massage, on 5 March 2017.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had breached visa condition 8107(3)(b), which requires a holder of a Subclass 457 visa to cease employment for no more than 60 consecutive days, and if the applicant had complied with the requirement to work only for the approved nominator or in a position within their business or an associated entity.

The Tribunal found that the applicant had breached visa condition 8107(3)(b) by ceasing employment with Lester P Holdings Pty Ltd and commencing employment with RBUY Pty Ltd without an approved nomination from the latter. While the applicant argued she was unaware of this requirement and relied on advice from agents and correspondence from the Department, the Tribunal considered it would have been reasonably prudent for her to make enquiries about her visa conditions. The Tribunal noted that the applicant had not been complying with the purpose of the 457 visa program for over two and a half years by working for an unapproved nominator. Despite acknowledging the applicant's circumstances, including her intention to remain in Australia for her son's schooling, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa and stated it had no jurisdiction concerning any other applicants.