Sonia (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of Mrs Sonia's Subclass 457 (Temporary Work (Skilled)) visa. The Minister had sought to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth), alleging that Mrs Sonia had breached a condition of her visa by working in an occupation other than that specified in her approved nomination. The nominated occupation was café or restaurant manager.

The primary legal issue before the Tribunal was whether Mrs Sonia had complied with condition 8107 of her visa, which mandates that the visa holder must only work in the occupation listed in their most recently approved nomination. This condition required the Tribunal to determine if the duties undertaken by Mrs Sonia were consistent with the role of a café or restaurant manager as defined by the Australian and New Zealand Standard Classification of Occupations.

The Tribunal, presided over by Kate Millar, found that the duties performed by Mrs Sonia were largely consistent with the nominated occupation. While her employer's director managed the kitchen, Mrs Sonia was responsible for tasks such as setting prices, managing and recruiting staff, taking bookings, ensuring customer satisfaction, and occupational health and safety in the dining area. The Tribunal was satisfied that these responsibilities aligned with the tasks of a café or restaurant manager. Consequently, the Tribunal concluded that the ground for cancellation under section 116(1)(b) was not made out, as Mrs Sonia had not breached condition 8107.

The Tribunal set aside the decision to cancel Mrs Sonia's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.