SEKHON (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Ms. Sekhon's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from concerns that Ms. Sekhon was not performing duties consistent with her nominated occupation as a Residential Care Officer (RCO), which would constitute a breach of condition 8107(3)(a)(i) of her visa. This condition mandates that the visa holder must work only in the occupation specified in the most recently approved nomination.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was established. Specifically, the Tribunal had to determine if Ms. Sekhon had failed to comply with condition 8107(3)(a)(i) by undertaking duties outside her nominated occupation. If this ground was not satisfied, the Minister's power to cancel the visa would not arise.

The Tribunal considered evidence presented by Ms. Sekhon, including statutory declarations from herself and her employer, reference letters from residents and healthcare professionals, and various employment-related documents such as rosters, contracts, and pay slips. It also reviewed the Department's initial findings based on a site visit and subsequent information requests. After evaluating the totality of the evidence, the Tribunal concluded that it was not satisfied that Ms. Sekhon had breached condition 8107(3)(a)(i). The Tribunal found that the evidence, particularly the more recent declarations and documentation, demonstrated that Ms. Sekhon was indeed performing duties consistent with her nominated role as a Residential Care Officer.

Consequently, the Tribunal set aside the decision to cancel Ms. Sekhon's visa and substituted a decision not to cancel the visa.