Rajwinder Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by Rajwinder Kaur. The applicant had been sponsored by VIR Pty Ltd to work as a Restaurant Manager. The core of the dispute arose when the sponsor's approval as a standard business sponsor was cancelled by the Department under section 140M of the Migration Act 1958 (Cth). This cancellation triggered the potential for the applicant's visa to be cancelled under section 116(1)(g) of the Act, as it constituted a prescribed ground for cancellation.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Act was established, and if so, whether to exercise its discretion to cancel the applicant's visa. The prescribed ground relied upon was found in regulation 2.43(1)(I)(iv) of the Migration Regulations 1994, which states that a visa may be cancelled if the sponsor has been cancelled or barred under section 140M of the Act. The Tribunal also had to consider the applicant's circumstances and submissions in deciding whether to exercise its discretion to cancel the visa.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established because the applicant's sponsor, VIR Pty Ltd, had its approval as a standard business sponsor cancelled under section 140M(1)(a). While this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretion. In doing so, it had regard to the applicant's submissions, including that she had commenced maternity leave in November 2016 and had not worked since. The applicant also indicated a desire to settle permanently in Australia, which the Tribunal noted was contrary to the purpose of a temporary visa program. The applicant had not secured new sponsorship and was pregnant with her second child.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa, concluding that, considering all the circumstances, the visa should be cancelled. The Tribunal noted it had no jurisdiction with respect to any other applicants.