Nikhath Yasmeen (Migration)

This matter concerned the review of a decision by the Department to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa in March 2016, with the most recently approved nomination being for the occupation of Community Worker. Investigations by the Department indicated that the applicant's duties from July 2016 onwards were not consistent with that nominated occupation, but rather with those of a General Clerk. Following a notice of intention to cancel, the applicant responded stating she had obeyed her employer's instructions. The Department proceeded to cancel the visa in November 2017. The applicant sought review of this decision by the Tribunal.

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 made out, specifically whether the applicant had breached a condition of her visa. The Tribunal was also required to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised. The applicant's visa was subject to condition 8107, which required the holder to work only in the occupation listed in the most recently approved nomination.

The Tribunal found that the applicant had breached condition 8107(3)(a)(i) of her visa, as her duties as a General Clerk were not consistent with her nominated occupation of Community Worker. The Tribunal noted that the occupation of General Clerk was not on the list of occupations that could form the basis of an approved nomination. While this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal gave significant weight to the purpose of the applicant's stay in Australia, which was to work as a Community Worker. The applicant had declined to provide further evidence or submissions to support her case, limiting the material before the Tribunal.

Having regard to the findings and the circumstances of the case, the Tribunal was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling it. Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal also noted that it had no jurisdiction with respect to other applicants.