DARSHAN SINGH (Migration)

The Administrative Appeals Tribunal considered the case of Darshan Singh, an Indian citizen whose Subclass 457 (Temporary Work (Skilled)) visa was cancelled by the Department of Home Affairs. The dispute arose after the applicant ceased employment with his sponsoring employer, RPM INFOSYS Pty Limited, and subsequently failed to secure new employment or lodge further nomination applications. The Department issued a notice of intention to cancel the visa, to which the applicant did not respond, leading to the cancellation of his visa. The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised in the applicant's circumstances. Specifically, the Tribunal had to determine if the applicant had complied with the conditions attached to his Subclass 457 visa, particularly condition 8107, which requires the visa holder to work only in the nominated occupation and limits the period of cessation of employment to 60 consecutive days.

The Tribunal reasoned that the applicant's visa was granted on the condition that he be employed by RPM INFOSYS Pty Limited in the nominated occupation. The sponsor notified the Department that the applicant's employment ceased on 29 June 2017, due to the sponsor winding up parts of its business. The Tribunal found that the applicant had not resumed employment with the original sponsor and that a subsequent nomination application lodged on his behalf in December 2017 was refused. Furthermore, the applicant failed to respond to the Department's notice of intention to cancel his visa and did not provide any information or evidence to the Tribunal in response to its communications, despite being invited to do so. The Tribunal concluded that the ground for cancellation under section 116(1)(b) was satisfied as the applicant had ceased employment and had not secured alternative employment or nomination within the prescribed period. In exercising its discretion, the Tribunal found no compelling circumstances to warrant not cancelling the visa, noting the applicant's lack of engagement with the Department and the Tribunal, and his failure to regularise his visa status.

Consequently, the Tribunal affirmed the decision of the Department to cancel the applicant's Subclass 457 visa.