RAJINDER SINGH (Migration)

This matter concerned an application by Rajinder Singh for review of a decision by the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been sponsored by R & A Restaurants Pty Ltd to work as a Café and Restaurant Manager. The visa was cancelled on the basis that the applicant had breached condition 8107 of his visa, which required him to work in his nominated occupation and not cease employment for more than 90 consecutive days. The Tribunal, constituted by Penelope Hunter, was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required determining if the applicant had failed to comply with a condition of his visa, specifically condition 8107, which stipulated that he must not cease employment for more than 90 consecutive days. The evidence indicated that the applicant's sponsor's business had ceased operating on or before 6 June 2018, and further checks revealed the sponsor's other restaurant had also been closed for over 12 months. This meant that more than 90 days had passed since the applicant ceased employment with his sponsor. The applicant responded to the notice of intention to cancel his visa, seeking an extension and providing explanations regarding company management transfers and his search for new employment. However, no further submissions were received after the extended deadline.

The Tribunal found that the ground for cancellation under s 116(1)(b) was satisfied, as the applicant had breached condition 8107(3)(b) by exceeding the 90-day period of unemployment. The Tribunal then considered the exercise of discretion regarding cancellation. It had regard to the applicant's stated purpose of travel, which was to undertake a Masters in Business, and noted inconsistencies in his academic pursuits and his application for a 457 visa. The Tribunal also considered the purpose of the 457 visa program, which is to address labour shortages. Given that the applicant was not currently in skilled employment, a significant period had elapsed since he last worked for his sponsor, and there was no evidence of an imminent approved nomination, the Tribunal concluded that these factors weighed in favour of cancellation.

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