Neena Rani (Migration)

This matter concerned an appeal by Neena Rani against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa by the Department of Immigration. The visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that Ms. Rani had breached visa condition 8107(3)(b) by ceasing employment for a period exceeding 90 consecutive days. Ms. Rani had ceased employment with her sponsoring employer in April 2016 and, despite attempts to secure new employment and lodge new nomination applications, the period without employment exceeded the prescribed 90 days.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Ms. Rani had indeed failed to comply with visa condition 8107(3)(b) by exceeding the 90-day limit for ceasing employment. If this ground was established, the Tribunal then had to consider all relevant circumstances, including those raised by Ms. Rani, to decide whether to affirm or set aside the cancellation decision.

The Tribunal found that Ms. Rani did cease employment with her sponsoring business in April 2016 and that this period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b). While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It acknowledged Ms. Rani's submissions regarding tax and superannuation issues with her former employer, her efforts to find new employment, and the medical condition of her daughter, which necessitated her continued presence in Australia. However, the Tribunal ultimately concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, finding that the cancellation was the correct and preferable decision.

Consequently, the Tribunal affirmed the decision to cancel Ms. Rani's Subclass 457 visa.