Singh (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr. Singh's Subclass 457 (Temporary Work (Skilled)) visa. The ground for cancellation was that Mr. Singh, having been in Australia when his visa was granted, failed to commence employment within 90 days as required by visa condition 8107(3)(aa)(ii). The Tribunal was required to determine whether this ground for cancellation was made out and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal found that the ground for cancellation was established, as Mr. Singh conceded he did not commence work within the stipulated 90-day period following the grant of his visa on 14 December 2016. However, the Tribunal noted that this ground did not mandate cancellation under section 116(3) of the Migration Act 1958 (Cth), allowing for the exercise of discretion. In considering this discretion, the Tribunal had regard to the applicant's stated purpose for his stay, the potential hardship cancellation would cause, and the circumstances in which the ground for cancellation arose. Crucially, the Tribunal considered evidence of a new potential sponsor, Crown Collie Hotel, which had lodged a nomination application for Mr. Singh to work as a Restaurant Manager in regional Western Australia. The Tribunal was satisfied, based on evidence from the company's director, that this represented a genuine need for the applicant's skills.

The Tribunal concluded that, despite the initial failure to meet the 90-day employment condition, the existence of a genuine new sponsorship opportunity weighed heavily in favour of not cancelling the visa. The Tribunal set aside the decision to cancel Mr. Singh's visa and substituted a decision not to cancel it.