Ruminder Kaur (Migration)

This matter concerned the review of a decision to cancel the applicant's subclass 457 (Temporary Work (Skilled)) visa. The applicant had breached condition 8107(3)(b) of her visa by ceasing employment with her sponsoring employer, ATOP, and failing to secure a new sponsoring employer within 90 days. The applicant's visa was subsequently cancelled by the delegate, and she sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether to exercise its discretion to affirm the delegate's decision to cancel the applicant's visa. This required the Tribunal to weigh various factors, including the seriousness of the breach, the applicant's reasons for remaining in Australia beyond the permitted period, the potential hardship to the applicant and her family if the visa were cancelled, and any compelling need for her to remain in Australia. The Tribunal also considered the applicant's claims regarding personal circumstances, including her son's health issues and her husband's assault, which she argued hampered her ability to find new employment.

The Tribunal found that the applicant's breach of condition 8107(3)(b) was substantial, as she ceased employment in February or March 2019 and did not secure a new nomination until April 2020. While acknowledging the applicant's personal circumstances, including her son's health and her husband's assault, which caused her stress and anxiety, the Tribunal determined that these factors did not outweigh the seriousness of the visa condition breach. The Tribunal also considered the potential hardship to the applicant and her family if they were required to return to India, but found that this hardship was mitigated by their relatively young age and the availability of healthcare in India, albeit potentially less effective. The Tribunal concluded that the applicant's continued stay in Australia for an extended period to search for new employment was inconsistent with the purpose of her 457 visa.

On balance, the Tribunal determined that the matters weighing in favour of cancelling the visa outweighed those against it. Accordingly, the Tribunal affirmed the delegate's decision to cancel the applicant's subclass 457 visa. The Tribunal noted it had no jurisdiction concerning the second and third applicants.