Meena Rani (Migration)

This matter concerned an appeal by Meena Rani against the cancellation of her Subclass 457 (Temporary Business Entry) visa. The applicant had been sponsored by SEHMI PUNJABI THALI Pty Ltd to work as a cook. Her employment with the sponsor ceased on 18 November 2016 because the sponsor's business ceased operations. The applicant subsequently obtained employment with a new business, Punjabii By Nature Pty Ltd, which lodged a nomination application for her. This application was refused on 24 August 2017, although a further nomination application was lodged and pending at the time of the delegate's decision. The applicant argued that the circumstances leading to the cancellation were beyond her control and that she had secured new employment.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was justified. This section permits cancellation if the Minister is satisfied that the visa holder has not complied with a condition of their visa. Specifically, the Tribunal had to determine if the applicant had complied with the conditions of her Subclass 457 visa, which generally require her to be employed by her sponsoring employer or an associated entity, and to have a nomination approved by a new sponsor within 90 days of ceasing employment with her original sponsor.

The Tribunal reasoned that the applicant's Subclass 457 visa permitted her to work only for the approved sponsor or an associated entity, and only in the occupation approved in the nomination. As the occupation of cook was not exempt from this requirement, and there was no record of a new nomination being approved for the applicant within 90 days of her ceasing employment with the original sponsor, the ground for cancellation under section 116(1)(b) was established. While the cancellation was not mandatory, the Tribunal considered the applicant's circumstances, including her history in Australia and the potential hardship of cancellation. However, it noted a lack of specific information regarding hardship and the absence of evidence that a new nomination had been granted.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that, on the balance of the circumstances, cancellation was warranted. The Tribunal noted it had no jurisdiction concerning a second applicant.