Varudelli (Migration)

This matter concerned an application for review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Ms Varudelli. The ground for cancellation was that the applicant's standard business sponsor, Sage Food Co Pty Ltd, had its sponsorship cancelled under s 140M of the Migration Act 1958 (Cth). The applicant had been nominated by Sage Food Co Pty Ltd for the position of Cook and was granted the visa on that basis.

The Migration Review Tribunal (MRT) was required to determine whether the ground for cancellation under s 116(1)(g) of the Act, as prescribed by r 2.43(1)(l)(iv) of the Migration Regulations 1994, was made out. If the ground was established, the Tribunal then had to consider whether to exercise its discretion not to cancel the visa, having regard to all relevant circumstances. The applicant had provided submissions detailing her history in Australia, her completion of studies, volunteer work, and her employment with the sponsor. Crucially, she highlighted the presence of her four-year-old daughter, born in Australia, who had learning difficulties and was due to commence primary school.

The Tribunal found that the ground for cancellation was established due to the sponsor's cancelled sponsorship. However, it then proceeded to consider the exercise of discretion. The Tribunal noted the applicant's employment history and lack of compliance issues. It gave significant weight to the learning difficulties experienced by the applicant's daughter and the potential hardship if they were required to return to India, for which limited country information was provided. Considering the circumstances as a whole, particularly the best interests of the child, the Tribunal concluded that the visa should not be cancelled.

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 any other applicants.