Singh (Migration)

This case concerned an appeal by Mr. Singh against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on the basis of sponsorship by Walkely Corp to work as a Cook. A condition of the visa, 8107(3)(b), stipulated that if the visa holder ceased employment, the period of unemployment could not exceed 90 consecutive days. The Department of Immigration issued a Notice of Intention to Consider Cancellation after departmental records indicated Mr. Singh had ceased employment with Walkely Corp on 15 February 2018, potentially breaching visa condition 8107. Mr. Singh responded to this notice, and the matter proceeded to the Tribunal for review of the cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) had been established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Mr. Singh had complied with his visa conditions, specifically condition 8107(3)(b), and then consider all relevant circumstances, including government policy, in deciding whether to cancel the visa. The Tribunal also had to consider the applicant's submissions regarding his circumstances and the failure of his sponsoring employer.

The Tribunal found that the ground for cancellation was established, as Mr. Singh had ceased employment for more than 90 consecutive days, thereby breaching visa condition 8107(3)(b). In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines, such as those in the Procedures Advice Manual (PAM3), could be a useful starting point, they were not legally binding. The Tribunal took into account that Mr. Singh had been in Australia since 2009, his wife was a dependant on his visa, and his sponsoring employer, Walkely Corp, had ceased operations due to financial difficulties. However, Mr. Singh had not sought alternative sponsorship and had been working as a taxi driver after his visa was cancelled. On balance, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel Mr. Singh's Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.