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 had been granted the visa on 10 June 2015, sponsored by GURAYA GROUP PTY LTD ATF BBSDJ FAMILY TRUST, and was subject to visa condition 8107, which stipulated that if the applicant ceased employment, the period must not exceed 90 consecutive days. The Department issued a Notice of Intention to Consider Cancellation on 23 October 2017, noting that the applicant had ceased employment on 14 July 2017, potentially breaching condition 8107. The applicant responded to this notice. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled, considering all relevant circumstances.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the Act existed. This provision allows for visa cancellation if the Minister is satisfied that the visa holder did not comply with a condition of their visa. The Tribunal found that the applicant had indeed ceased employment for longer than 90 days, thus satisfying the ground for cancellation under s 116(1)(b) as condition 8107 had been breached. However, this ground did not mandate cancellation under s 116(3), meaning the Tribunal had a discretion to decide whether to cancel the visa.

In exercising its discretion, the Tribunal had regard to the circumstances presented by the applicant. The applicant had actively sought new employment and a new sponsor after losing his position. Despite initial setbacks, including a refused nomination application due to a failure to meet Labour Market Testing requirements, the applicant had secured a new Standard Business Sponsorship and lodged a further nomination application. The Tribunal acknowledged that while it could be guided by policy, it was not bound by it. Given the applicant's considerable efforts to secure new employment and a new sponsor, and the ongoing nomination process, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.