Kiranjeet Kaur (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 186 Employer Nomination Scheme visa granted to Kiranjeet Kaur. The dispute arose from the Department's finding that Ms. Kaur had failed to notify an officer of a change in her circumstances, specifically that her sponsoring employer, Cafe Kathmandu Pty Ltd, had ceased trading and she was no longer employed there. This alleged non-compliance was identified as a breach of section 104 of the *Migration Act 1958*.

The Tribunal was required to determine whether Ms. Kaur had indeed failed to comply with section 104 of the Act by not informing the Department in writing of her change in circumstances prior to the grant of her visa. The Tribunal also had to consider whether, if non-compliance was found, the discretionary power to cancel her visa should be exercised. The core of the issue was whether the position for which she was nominated remained available to her, a condition for the grant of the visa.

The Tribunal's reasoning focused on the timeline of events. Cafe Kathmandu Pty Ltd was proposed for deregistration in August 2014 and placed into liquidation by court order on 5 December 2014, ceasing to trade. Ms. Kaur lodged her visa application and nomination on 09 October 2014, and the nomination was approved on 16 February 2015, with the visa granted on 09 March 2015. The Tribunal found that the Department was not made aware by either Ms. Kaur or the sponsor that the company had ceased trading and that she was no longer employed there. However, the Tribunal ultimately found that there was no non-compliance by the applicant in the manner described in the notice issued under section 107 of the Act.

Consequently, the Tribunal set aside the decision to cancel Ms. Kaur's visa and substituted a decision not to cancel it. The Tribunal concluded that the discretionary power to cancel the visa did not arise because it found no non-compliance by the applicant as particularised in the notice.