Singh (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel Mr. Singh's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. Mr. Singh had ceased employment as a cook with his sponsoring business on 23 April 2017, and the delegate issued a notice of intention to cancel his visa on 13 September 2017, ultimately cancelling the visa on 3 October 2017. Mr. Singh sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr. Singh had indeed breached condition 8107(3)(b) by exceeding the 90-day limit for ceasing employment. If this ground was established, the Tribunal was then required to consider all relevant circumstances, including government policy as outlined in the Procedures Advice Manual (PAM3), in deciding whether to affirm the cancellation.

The Tribunal found that Mr. Singh ceased employment on 23 April 2017 and that the period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while PAM3 guidelines could be a useful starting point, they were not legally binding and could not override the wording of the Act. The Tribunal noted that Mr. Singh's intended new employer was undertaking labour market testing and that Mr. Singh was facing criminal charges, but concluded that these factors, along with the fact that Mr. Singh had only applied once to have a work restriction on his bridging visa removed, did not outweigh the reasons for cancelling the visa.

Consequently, the Tribunal affirmed the delegate's decision to cancel Mr. Singh's Subclass 457 visa, finding that the cancellation was the correct and preferable decision in the circumstances.