Singh (Migration)

This matter concerned an application by a visa holder, identified as the first applicant, to review the Minister's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa in August 2017, valid until February 2019, based on his nomination as a Cook by Hoshiarpuria Pty Ltd. The Department issued a Notice of Intention to Consider Cancellation after departmental records indicated the applicant had ceased employment with his sponsor in February 2018, more than 60 days prior to the notice. The applicant responded, explaining that his sponsoring employer faced financial difficulties, leading to his cessation of employment. He had sought sponsorship from another employer, Ace Complete Party Supplies Pty Ltd, but their nominations for him were refused. The applicant argued that the circumstances were beyond his control and that cancellation would cause significant financial and psychological hardship to him and his wife.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled, considering all relevant circumstances. The legal issues included assessing the applicant's compliance with his visa conditions, specifically the requirement to maintain employment with his sponsor, and then exercising the discretion to cancel the visa, taking into account factors such as the purpose of the visa, the applicant's compelling need to remain in Australia, and the best interests of his Australian-born child. The Tribunal also had to consider its jurisdiction concerning a second applicant, which was found to be absent.

The Tribunal found that the ground for cancellation under s 116(1)(b) was made out, as the applicant had ceased employment with his sponsor for more than 60 days. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted that the Subclass 457 visa is temporary and intended for skilled work with an approved sponsor, and that the applicant's original approved employment had ceased. The applicant's visa had also expired by the date of the tribunal hearing. Although the applicant had pending applications for permanent residency and a new position nomination, and highlighted the financial hardship and lack of prospects for his Australian-born child if returned to India, the Tribunal found no clear indication of the success of these applications. The Tribunal concluded that, considering all circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to the second named applicant.