Sukhpreet Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Sukhpreet Kaur, who sought review of the Minister's decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose because the applicant's sponsoring employer, J’vons Pty Ltd ATF J’vons Business Trust, had been deregistered by ASIC, and the applicant had been unemployed for more than 90 days, which are grounds for visa cancellation under section 116 of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(b) of the Act were made out, and if so, whether the Minister's discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider the applicant's knowledge of the sponsor's deregistration, the reasons for her unemployment, and whether these circumstances were beyond her control. The Tribunal also had to assess the applicant's compelling reasons to remain in Australia, including her proposed future employment and the potential hardship to her family if the visa were cancelled.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established because the applicant's sponsoring employer had been deregistered and she had been unemployed for over 90 days. However, the Tribunal determined that the cancellation was not mandatory under section 116(3). In exercising its discretion, the Tribunal took into account that the applicant was not notified of the sponsor's deregistration until after the event and that her unemployment arose from circumstances beyond her control, specifically the sponsor's failure to manage its registration and business restructure. The Tribunal also noted that the applicant had actively sought and obtained new employment with a different sponsor, Greenfields Pty Ltd (trading as Quadro Hair), whose nomination had been approved. Considering the applicant's long-term residence in Australia, her family's emotional and financial ties, and her new employment prospects, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning the second and third named applicants.