SINGH (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of Mr. Singh. The visa had been granted for the applicant to work as a Fleet Manager, sponsored by Halk Carriers Pty Ltd. The Minister's delegate had formed the view that Mr. Singh had breached a condition of his visa, specifically condition 8107(3)(a)(i), which required him to work in the occupation listed in the most recently approved nomination.

The core legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. This section permits the Minister to cancel a visa if the holder has not complied with a condition of their visa. The specific condition in question mandated that the visa holder work in the nominated occupation. The delegate's conclusion that Mr. Singh had not complied with this condition was based on an interview where Mr. Singh described his duties as checking tyre pressure, water levels, engine oil, and break oil in trucks, reporting issues, assisting drivers with loading and unloading, and hiring additional trucks when necessary. The delegate considered these duties to be more aligned with a Truck Driver's Offsider or Delivery Driver than a Fleet Manager.

The Tribunal found that the evidence did not satisfy it that the ground for cancellation existed. While the delegate relied on the applicant's description of his duties, the Tribunal considered the applicant's subsequent response to the Notice of Intention to Consider Cancellation. In this response, the applicant indicated he was seeking a new nomination for the position of Transport Company Manager with a new sponsor. Crucially, the Tribunal concluded that it was not satisfied that the applicant had failed to comply with condition 8107(3)(a)(i). Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel Mr. Singh's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.