Gupta v Minister for Immigration and Multicultural Affairs [2026] FedCFamC2G 520

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application for review of a decision made by the then Administrative Appeals Tribunal ('Tribunal') on 17 September 2019. In that decision, the Tribunal affirmed the decision of a delegate of the Minister for Home Affairs to cancel the Applicant's Temporary Work (Skilled) (Class UC) (Subclass 457) visa ('visa').
2. For the reasons that follow, I have decided to dismiss the application for review.

1. The Applicant is an Indian national. The Applicant was granted the visa on 15 September 2016 on the basis of an approved nomination to work for JL Restaurant Pty Ltd ('sponsor') as a Café and Restaurant Manager. The Applicant commenced employment for the sponsor on 5 June 2017.
2. The Second and Third Applicants ('Secondary Applicants') are the Applicant's husband and daughter who were granted the visas as members of a family unit.
3. Visa condition 8107 applied to the visa. Condition 8107(3)(a) required that the Applicant 'work only in the occupation listed in the most recently approved nomination'.
4. The Australian and New Zealand Standard Classification of Occupations Dictionary (ANZSCO) (which was referred to by both the delegate and the Tribunal) relevantly sets out the duties of a Café or Restaurant Manager (Code 141111) to include as follows:
   • planning menus in consultation with Chefs
   • planning and organising special functions
   • arranging the purchasing and pricing of goods according to budget
   • maintaining records of stock levels and financial transactions
   • ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
   • conferring with customers to assess their satisfaction with meals and service
   • selecting, training and supervising waiting and kitchen staff
   • may take reservations, greet guests and assist in taking orders
5. In April 2018, officers from the Australian Border Force ('ABF') conducted a 'monitoring audit' of the sponsor. Evidence gathered during the monitoring audit indicated that the Applicant had not worked only in her nominated occupation of Café and Restaurant Manager.
6. On 1 June 2018, the Department interviewed the Applicant in relation to her role. Asked about the duties performed by her in her role, the Applicant gave evidence that she was not involved in 'higher level functions' including the duties of a Restaurant Manager as set out in the ANZSCO.
7. The ABF also conducted interviews with other employees in the sponsor's business. Those employees indicated that that the role of Restaurant Manager was being undertaken by another employee named Sara.
8. Inquiries were made of the sponsor as to whether the Applicant had been undertaking the 'higher level' duties of a Restaurant Manager. On 6 July 2018, representatives of the sponsor (instructed by Ms Janet Lamont, Director of the sponsor) responded to the ABF and indicated that the Applicant had 'not sufficiently fulfilled her role as a competent Restaurant Manager'.
9. On 23 November 2018, the Department of Home Affairs ('Department') sent to the Applicant a Notice of Intention to Consider Cancellation of her visa ('Notice') on the basis that were grounds to consider she had failed to comply with condition 8107(3)(a).
10. On 7 December 2018, the Applicant responded to the Notice stating that she had 'genuinely worked on (sic) the nominated position as a Restaurant manager'. The Applicant provided the Department with various documents including pay slips, bank statements, superannuation statements, and a Master of Science (Hotel Management) qualification which was obtained in India.
11. On 10 December 2018, the Applicant's visa was cancelled in accordance with section 116(1)(b) of the Migration Act 1958 (Cth) ('Act'). The Secondary Applicants' visas were automatically cancelled under section 140 of the Act.
12. On 14 December 2018, the Applicant applied to the Tribunal for review of the decision to cancel the visa.
13. On 12 February 2019, the Tribunal wrote to the Applicant informing her that it was unable to make a favourable decision on the information alone and inviting her to attend a hearing on 16 April 2019. A hearing subsequently occurred on 16 April 2019.
14. On 23 May 2019, the Tribunal wrote to the Applicant. The Tribunal had become aware of and requested from the Department a copy of a Notice of Intention to Take Action dated 22 June 2018 which had been issued to the sponsor by the ABF ('NOITA'). The NOITA contained, inter alia, particulars of information obtained from the ABF about the employment arrangements of the sponsor. The Tribunal provided a copy of the NOITA to the Applicant and noted that information contained in the NOITA was relevant to the review as the Tribunal may determine that the Applicant did not work in the occupation listed in the approved nomination for her and on that basis, did not comply with condition 8107(3)(a)(i) of the visa.
15. On 6 June 2019, the Applicant provided a response to the Tribunal and submitted various financial documents evidencing payment of wages by the sponsor, an employment agreement, and a supporting letter from Ms Lamont dated 15 April 2019. The Applicant also provided submissions in which she contended, inter alia, that the Tribunal should disregard evidence taken from Mr Favaloro, Director of an entity related to the sponsor, Osteria Group Australia Pty Ltd, as he was not associated with the sponsor in any legal capacity. Rather, it was Ms Lamont who was responsible for overseeing the day-to-day operations of the sponsor.
16. On 17 September 2019, the Tribunal affirmed the decision to cancel the Applicant's visa.
17. On 18 October 2020, the Applicant filed the Application for review in this Court ('Application') along with a supporting affidavit. The Applicant relied on the Application, her supporting affidavit, and an outline of submissions filed on 16 March 2026. The Minister relied on an outline of written submissions and the Court Book.

1. The Tribunal provided written reasons for its decision. It noted that the Minister may cancel a visa under section 116 of the Act and further that a visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the visa holder did not comply with a condition of the visa. The Tribunal noted at [6]-[7] that Condition 8107, which was attached to the Applicant's visa, required the Applicant to work only in the occupation listed in the most recently approved nomination.
2. The Tribunal considered firstly whether a ground for cancellation existed. The Tribunal noted at [8] that the Applicant had arrived under her visa for the purpose of working as a Restaurant Manager for the sponsor. At [10], the Tribunal had regard to the typical duties associated with the position of Café or Restaurant Manager. At [11]-[12] the Tribunal recorded evidence given by the Applicant about her work. At [17]-[18] respectively, the Tribunal heard from the Applicant's brother-in-law and the Second Applicant about the work performed by the Applicant. At [19]-[20], the Tribunal noted documents that it had been provided with and information it had obtained after becoming aware of the NOITA, including information obtained by two other employees working for the sponsor, that information indicating the Applicant did not perform the duties of a Restaurant Manager. At [21]-[23], the Tribunal recorded the content of information given to the Applicant on 23 May 2019, and the opportunity given to her to respond to the information the Department had provided concerning the NOITA. At [24], the Tribunal recorded information given to it by the Applicant in response to it informing the Applicant about the content of the NOITA. At [26], the Tribunal referred to the written submissions which had been supplied by the Applicant. Those submissions included submissions to the effect that Ms Lamont was better informed about the Applicant's work than Mr Favaloro and that the Tribunal should disregard the comments made by Mr Favaloro.
3. The Tribunal then proceeded to make a number of findings with respect to whether the ground for cancellation of the visa was made out. The Tribunal accepted at [27] that while the Applicant was initially employed in the role of Restaurant Manager, she did not remain in that role for the entirety of her employment. The Tribunal considered information relating to the business of the sponsor and the respective roles of Ms Lamont and Mr Favaloro. At [31] and [34], it accepted that Mr Favaloro had a detailed and accurate knowledge of the staffing arrangements within the business. It considered evidence given by Ms Lamont to be inconsistent with information provided by two other employees at the business, whom it found to be credible at [32]. It expressed concerns about the reliability of Ms Lamont's evidence at [33] and attached little weight to that evidence. At [34] it noted that Ms Lamont had told the ABF that Mr Favoloro's knowledge of staffing arrangements was greater than hers. At [35]-[37], the Tribunal noted that it had taken into account the evidence of Mr Mudit Gupta and also the Second Applicant. At [38], the Tribunal noted that it had taken into account the Applicant's skills assessment. Ultimately at [39], the Tribunal concluded that it was satisfied that the Applicant did not work only in the position of Restaurant Manager, which was the occupation listed in the most recently approved nomination for the Applicant, and that therefore the ground for cancellation exists.
4. The Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal noted at [40] that there are no matters specified in the Act or the Regulations that must be considered, but stated that it had regard to matters raised by the Applicant and matters in the Department's Procedures Advice Manual. At [41], the Tribunal noted that the purpose of the visa was to fill a skill shortage. At [43], the Tribunal noted that the Applicant was no longer able to work as a Restaurant Manager, that she was not currently employed and was caring for her young daughter, and that the Applicant provided no evidence of any attempts made by her to obtain further employment. Accordingly, at [44]-[45], the Tribunal found that as the Applicant was no longer working in Australia, her original purpose for travelling to Australia no longer exists, and that such a finding weighed in favour of cancellation of the visa.
5. At [46], the Tribunal noted that apart from the Applicant's non-compliance with condition 8107, there was no evidence that she had been non-compliant with other conditions of the visa, and at [47] noted that this matter on balance weighed against the cancellation of the visa.
6. At [48]-[52], the Tribunal considered the degree of hardship (financial, psychological, emotional or other hardship) that may be caused. The Tribunal noted that the Applicant was not employed and had no plans on seeking further employment. The Tribunal noted that the Applicant's husband was currently employed in a hotel on a full-time basis and that he would attempt to gain employment in that industry if he returned to live in India. The Tribunal noted that both the Applicant and her husband told the Tribunal that their daughter would find it difficult to adjust to the Indian education system if the family returned to India and that she would experience social and educational difficulties. The Tribunal accepted that the Applicant's daughter would experience some difficulties in adjusting. The Tribunal noted that the Applicant had indicated that a return to India would cause the family financial hardship because of the cost of relocation and also because of lower wages in India. The Tribunal accepted these matters and found on balance they weighed against cancellation of the visa.
7. At [54]-[65], the Tribunal considered a range of matters. The Tribunal found that the Applicant was ultimately not working in her nominated occupation, that the evidence of Mr Mudit Gupta was not inconsistent with the Applicant performing duties as a Front of House supervisor, and that these matters together weighed in favour of cancellation. The Tribunal also considered that the Applicant had been cooperative in her dealings with the Department, that the Secondary Applicants would be subject to consequential cancellation of their visas, that if the Applicant remained in Australia without a visa she may be detained and may be subject to an exclusion period, and that Australia's international obligations required consideration of the best interests of children. The Tribunal found these matters weighed against cancelling the visa. The Tribunal also considered that there were no obligations including non-refoulement which meant that consideration of such matters was neutral.
8. At [66]-[69], the Tribunal summarised its findings and decision. The Tribunal noted that while certain factors weighed against cancellation, the Tribunal gave greater weight to the purpose underlying the grant of the visa and the fact that the Applicant had not secured another nomination since ceasing employment. The Tribunal considered that the visa should be cancelled and ultimately affirmed the decision to cancel the visa.

1. In the Application filed 18 October 2019, the Applicant set out two Grounds for Review as follows:
   1. The Tribunal failed to exercise its obligation on the procedural fairness which constitutes jurisdictional facts error.

Particulars

1. The Applicant met all required criteria and all required information as required by condition 8107.
2. The factual evidence is that all documents were provided to the department.
3. The Tribunal asked for further documents and oral evidence which was delivered accordingly.
4. The sponsor has been approached by the department of Australian Border Force and has been restricted from sponsoring the Applicant.

v) The sponsor cannot sponsor any worker.

1. The Applicant has met all requirements needed to satisfy the criteria required for her visa.

2. The Tribunal made a jurisdictional error in failing to take into account factual circumstances of the case.

Particulars

1. The decision maker failed to take a proper, genuine and realistic consideration of the matter.
2. The Apllicant satisfied her visa condition at all times and was performing her position on a salary.
3. The applicant has all the documents which is required and submitted further documents to the Tribunal.
4. The sponsor was issued a restriction by the department of border protection.
5. The Tribunal failed to provide a fair and successful outcome based on the facts.

1. In her affidavit supporting the Application, the Applicant set out a brief chronology of events and deposed to finding it difficult to find a sponsor.
2. The Applicant filed a written outline of submissions prior to the hearing before me. The written outline of submissions provided to me are in substantially identical terms to written submissions the Applicant provided to the Tribunal dated 6 June 2019 (Court Book 270-273). The difference is that the set of submissions received by the Court have been altered to take into account the fact that the proceedings are now in this Court. The most substantial alteration to the submissions is the insertion of two paragraphs on the last page of the document which speak to the uncertainty the Applicant has lived with for the last seven years, the prolonged and significant emotional and practical impact on the Applicant and her family (particularly her daughter) and a plea for justice.
3. In oral submissions before me, the Applicant emphasised that more weight should have been given by the Tribunal to the evidence provided by Ms Lamont, and that the Applicant performed a variety of tasks, including Restaurant Manager, when working for the sponsor.
4. Under Ground 1, the Applicant asserts a failure by the Tribunal to 'exercise its obligation' with respect to procedural fairness toward the Applicant. The particulars to this Grounds of Review do not identify how the Tribunal has failed to accord the Applicant procedural fairness. Given the unrepresented status of the Applicant, I have considered the materials in the Court Book and the decision of the Tribunal. In my view, the Tribunal has complied with its procedural fairness obligations. The Applicant was invited to attend a hearing before the Tribunal and she did so. Then, on 23 May 2019, the Tribunal wrote to the Applicant and invited her to comment on the NOITA and the information obtained with respect to it. The letter of 23 May 2019 explained clearly how the information was relevant and also the consequences of the Tribunal relying on that information. When the circumstances are considered, there was not a failure to afford the Applicant procedural fairness.
5. Under Ground 2, the Applicant asserts that the Tribunal made a jurisdictional error by failing to take account of factual circumstances. In the particulars to that ground, the Applicant says, among other things, that the Tribunal failed to take a proper, genuine and realistic consideration of the matter, that she complied with her visa condition at all times, that she had provided all documents and that the Tribunal failed to provide a fair and successful outcome.
6. The Applicant made an oral submission in which she, inter alia, asserted that Mr Favaloro was not the main owner of the business conducted by the sponsor, and that the Tribunal needed to give more weight to the statements made by Ms Lamont. The Applicant made a similar point in the written submissions she provided to the Court in advance of the hearing, and she made the same point in written submissions provided to the Tribunal.
7. The Applicant also referred orally to her family situation and in particular the position of her daughter and the hardship she would suffer. She made the same point also on page 4 of her written submission.
8. With respect to these submissions, it is important to bear in mind the comments of the High Court. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 ('Plaintiff M1') at [24]-[27], the Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) stated as follows:

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations[41]. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman[42], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker[43]. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness[45]. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations[46]. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations[47]. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them[48].

[26] Labels like "active intellectual process"[49] and "proper, genuine and realistic consideration"[50] must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised"[51]. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[52], "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials[53] or a substantial and clearly articulated argument[54]; misunderstood the applicable law[55]; or misunderstood the case being made by the former visa holder[56], that may give rise to jurisdictional error.

1. It is important to recognise first, that the Tribunal took account of matters the Applicant complains were not considered. At paragraph [26] of its reasons, the Tribunal expressly summarised the Applicant's written submissions, including her submissions about the weight to be given respectively to the evidence of Ms Lamont and Mr Favaloro and the ownership structure of the sponsor. The Tribunal clearly weighed those submissions and matters when it came to making the findings it did at paragraphs [29]-[37], including its findings that:

(a) it did not accept the Applicant being employed in the position of Restaurant Manager throughout the entirety of her employment;

(b) that Mr Favaloro had a detailed knowledge of the staffing arrangements in the café; and

(c) little weight should be attached to the evidence of Ms Lamont and that her evidence was inconsistent with information supplied by two other employees.

1. The Tribunal also considered the Applicant's family situation. The Tribunal considered the hardship that may be caused to the Applicant and her family, and the consequences of cancellation of the visa for the Applicant, her family and her child, finding that all of these matters weighed against cancelling the visa: see [48]-[53]; [60]-[62] and [65] of the reasons of the Tribunal. The Tribunal nevertheless, when weighing other factors, decided to cancel the visa.
2. At its core, the Applicant's submissions invite reconsideration of the merits of the decision of the Tribunal or take issue with the weight the Tribunal gave to certain evidence. The Court cannot engage in merits review. The question of what weight attaches to the evidence is a matter for the Tribunal: see Plaintiff M1 and also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 41.
3. In summary, having considered the decision of the Tribunal, the Application and the various submissions made by the Applicant, the Applicant has not demonstrated that the Tribunal has committed jurisdictional error. Neither of the Grounds of Review are made out. The only appropriate orders are that the Application be dismissed.
4. The Minister has been wholly successful and the Applicant wholly unsuccessful. The Minister seeks costs in the amount of $5,454.55. These costs are less than the scale costs. In the circumstances, I will make an order against the Applicant for costs in the amount sought.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.