Rimpal (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Rimpal. The dispute centred on whether the applicant had breached a condition of her visa by not working solely in the occupation listed in her approved nomination, which was Corporate Services Manager. The delegate who cancelled the visa was satisfied that the applicant was not employed by her sponsor in that specific role, but rather was classified as an independent contractor.

The primary legal issue before the Tribunal was to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to ascertain if the applicant had failed to comply with condition 8107(3)(a)(i) of her visa, which mandated that she work only in a position within the business of her approved standard business sponsor or an associated entity. If the ground for cancellation was established, the Tribunal then had to consider whether the exercise of discretion warranted the cancellation of the visa.

The Tribunal considered evidence from the applicant and the director of her sponsor, Ocenia Friendly Brothers Pty Ltd ATF The Tavake’s Family Trust. This evidence indicated that the applicant was nominated for the Corporate Services Manager position, and that Ocenia employed the applicant while engaging independent contractors for parcel deliveries. The Tribunal also heard evidence regarding a relocation of Ocenia's business premises and a dispute involving the sponsor's director and his ex-wife, which the applicant believed was the catalyst for the Fair Work Ombudsman's involvement and attempts by the ex-wife to solicit information from the applicant. Based on the credible witness testimony and documentary evidence, the Tribunal was not satisfied that the applicant had breached the visa condition.

Consequently, the Tribunal concluded that the ground for cancellation under s 116(1)(b) was not established, meaning the power to cancel the visa did not arise. The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.