Karnaljeet Singh (Migration)

This matter concerned an appeal by Mr Karnaljeet Singh against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa by a delegate of the Minister for Home Affairs. The cancellation was based on the ground that Mr Singh's sponsor, Deimos Technologies Pty Ltd, had its sponsorship approval cancelled and was subsequently barred from sponsoring temporary visa holders. Mr Singh accepted that the ground for cancellation was made out but sought the exercise of discretion by the Tribunal not to cancel his visa, arguing that the factors favouring non-cancellation outweighed those favouring cancellation.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth), read with regulation 2.43(1)(l)(iv) of the *Migration Regulations 1994* (Cth), was established, and if so, whether to exercise the discretion to cancel the visa. Mr Singh did not dispute the factual accuracy of his sponsor's sponsorship cancellation and bar. Therefore, the primary focus of the Tribunal's consideration was the exercise of discretion, involving a weighing of various factors including the purpose of Mr Singh's travel and stay, his compliance with visa conditions, the hardship that cancellation might cause, the circumstances leading to the ground for cancellation, his conduct towards the Department, and potential consequences for other visas or international obligations.

In exercising its discretion, the Tribunal considered that Mr Singh had been granted the visa to work in his nominated occupation and that he had actively sought continued employment in the IT field, even relocating in pursuit of a new visa subclass. The Tribunal noted that the circumstances leading to the cancellation, including the impact of COVID-19 restrictions and his travel to his home country for marriage, were beyond his control. While acknowledging that Mr Singh had ceased employment for more than 60 days and that his sponsor's approval had been cancelled, the Tribunal found that these factors were outweighed by the hardship that cancellation would cause Mr Singh, his efforts to secure new employment consistent with his original purpose of travel, and the fact that the ground for cancellation did not mandate a mandatory cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr Singh's visa and substituted it with a decision not to cancel the visa.