Singh (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Singh, who sought review of the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the ground that Mr. Singh had ceased employment with his sponsor for more than 60 consecutive days, thereby breaching a condition of his visa. Mr. Singh argued that the cessation of employment was due to his employer ceasing to trade and changing hands, which was beyond his control, and that he had made genuine efforts to secure new sponsorship.

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 Mr. Singh's circumstances. The Tribunal was required to determine if Mr. Singh had complied with condition 8107(3)(b) of his visa, which stipulated that the period of ceasing employment must not exceed 60 consecutive days.

The Tribunal found that Mr. Singh had indeed ceased employment for a period exceeding 60 consecutive days, thus establishing the ground for cancellation under s 116(1)(b). While this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion. In doing so, it had regard to the purpose of Mr. Singh's stay in Australia, noting that his 457 visa was for the specific purpose of working as a Chef, a purpose that had ceased to exist as he had not worked in that capacity for nearly two years. The Tribunal also considered Mr. Singh's compliance history and his stated intention to return to India, concluding that his continued stay in Australia was no longer viable.

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