Non-Compliance with Condition 8107 of the Subclass 482 Visa
The decision in Kaur shows that sometimes, if your visa is cancelled by the Department, the decision may be overturned upon an application for review to the Administrative Appeals Tribunal (“Tribunal”).
Kaur (“the applicant”) was a holder of Subclass 482 visa. Condition 8107 was attached to the applicant visa, which requires that the visa holder to work only in the occupation in the most recently approved nomination, and only for the employer who most recently nominated the applicant. Should the visa holder cease that employment, the period during which they ceased employment must not exceed 90 consecutive days.
Kaur’s employment ceased when the owners of that business sold the business, and the new owner was not prepared to continue with the applicant’s sponsorship. The applicant, therefore, lost her job through no fault of her own and resulted her non-compliance with condition 8107 of her TSS visa.
Since ceasing employment with her original employer, the applicant had attempted to secure new sponsorship from other businesses within 90 days. However, when she eventually found a new sponsor, the 90 days had lapsed. The applicant’s visa was then cancelled by the Department. The applicant appealed against the cancellation decision to the Tribunal.
How Did the Tribunal Decide?
In Kaur’s case, the Tribunal considered that the circumstances of breach did not arise from deliberate or significant breaches by the applicant. The applicant had tried to secure new employment. The Tribunal accepted that she had been cooperative with the Department and this weighed against the cancellation of her 482 visa. The Tribunal also had sympathy that the circumstances which led to cancellation of her visa were not within her control. Therefore, the decision to cancel her visa was revoked.
If you are a Subclass 482 visa holder, and your employment with your sponsor ceases, you must secure a new employer who is willing to be your sponsor within 90 days. Otherwise, your visa may be cancelled by the Department. However, if you are able to show that the cessation of employment with your sponsor is something beyond your control, and you have tried your best to secure a new sponsor, the Department may take into consideration those factors in deciding whether to cancel your Subclass 482 visa.