Jatinderbir Singh (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, Jatinderbir Singh, had been granted the visa to work as a Restaurant Manager for a sponsor, The Trustee for Sutlej Investments Trust trading as Singh’s Curry Palace. The dispute arose when the Department of Home Affairs became aware that the sponsor's business had ceased trading in March 2018, and the applicant had also ceased employment with the sponsor around the same time. The applicant contended that he was unaware of the business closure and had taken leave due to family visiting, asserting he was looking for new employment. The Administrative Appeals Tribunal was tasked with determining whether the grounds for visa cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider whether the applicant had complied with the conditions of his visa, specifically Condition 8107, which mandates that a holder of a Subclass 457 visa must not cease employment with their sponsor for a period exceeding 90 consecutive days. The Tribunal also had to determine whether, in light of the circumstances, the Minister's discretion to cancel the visa should be affirmed. This involved assessing the applicant's explanation for ceasing employment and his subsequent inability to secure another approved nomination or sponsorship, which is central to the purpose of a 457 visa.

The Tribunal found that the ground for cancellation under s.116(1)(b) of the Migration Act 1958 was made out, as the applicant had ceased employment with his sponsor for a period exceeding 90 consecutive days, thereby failing to comply with visa condition 8107(3)(b). While acknowledging that the applicant was not responsible for the sponsor's business closure, the Tribunal considered that the applicant's inability to secure another approved nomination since ceasing employment in June 2018, nearly 11 months prior to the Tribunal's consideration, weighed heavily in favour of cancellation. The Tribunal reasoned that the purpose of the 457 visa is to fill skilled shortages, and the applicant's prolonged inability to fulfil this purpose by securing new employment with an approved sponsor meant he was not meeting the visa's objectives.

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