Singh (Migration)

This matter concerned an appeal by Mr. Singh against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been granted the visa on 31 July 2015, sponsored by Guraya Group Pty Ltd, and was subject to visa condition 8107, which required him to remain employed for no more than 90 consecutive days if he ceased employment. The Department of Home Affairs considered cancelling his visa under s.116(1)(b) of the Migration Act 1958 (Cth) on the basis that he had ceased employment with his sponsor on or before 14 July 2017 and had not secured a new sponsor within the prescribed timeframe.

The primary legal issue before the Tribunal was whether the grounds for cancellation under s.116(1)(b) of the Act were made out, and if so, whether the discretion to cancel the visa should be exercised. This involved determining if the applicant had breached visa condition 8107 by ceasing employment for more than 90 consecutive days without a new sponsor, and then considering all relevant circumstances, including government policy, in deciding whether to affirm the cancellation.

The Tribunal found that the applicant had not worked for his sponsoring employer since approximately Christmas 2016, thus satisfying the ground for cancellation under s.116(1)(b). In exercising its discretion, the Tribunal considered the applicant's history in Australia, his educational qualifications, and his efforts to secure new sponsorship. However, it noted that legislative amendments effective from 18 March 2018 meant it was no longer possible to lodge a new nomination application under the Subclass 457 scheme. Weighing the circumstances, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons against it.

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