Singh (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first applicant, Mr. Singh. The secondary applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction in relation to them. The primary dispute before the Tribunal was whether the cancellation of Mr. Singh's visa was justified.

The legal issues before the Tribunal were 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. The visa was subject to condition 8107(3)(b), which stipulated that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The Tribunal was required to determine if Mr. Singh had complied with this condition.

The Tribunal found that Mr. Singh ceased employment in January 2016 when he learned his sponsoring business was sold and subsequently ceased trading. It was satisfied that the period of unemployment exceeded 90 consecutive days, thus establishing the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal had regard to the circumstances of the case, including the applicant's submissions and the Department's Procedures Advice Manual (PAM3). The Tribunal noted that while PAM3 guidelines are not legally binding, they provide a useful starting point. Crucially, the Tribunal gave significant weight to the fact that the purpose of the Subclass 457 visa, which is to enable a business to sponsor a skilled worker for a temporary period, no longer existed as Mr. Singh had ceased working for his sponsor in January 2016.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Singh's visa, finding it to be the correct and preferable decision. The Tribunal also reiterated that it had no jurisdiction concerning the secondary applicants.