SINGH (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased employment with his sponsoring employer, ND Stores Pty Ltd ATF ND Stores Unit Trust, on 30 June 2016. The visa was cancelled by the Department on 5 December 2016, on the basis that the applicant had breached a condition of his visa by ceasing employment with his nominated sponsor and failing to secure a new nomination within 90 days.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider if the applicant had complied with condition 8107(3)(b) of his visa, which requires the holder to cease employment with their sponsor only if a new nomination is approved within 90 days.

The Tribunal reasoned that the applicant had indeed breached condition 8107(3)(b) as he had ceased employment with his sponsor on 30 June 2016 and had not secured an approved nomination within the subsequent 90-day period, nor at any time thereafter. The Tribunal noted that the purpose of the Subclass 457 visa is to fill skills shortages for approved sponsors, and the applicant's inability to secure a new nomination meant he was no longer fulfilling the purpose of his visa. This failure to secure a new nomination, coupled with the significant period that had elapsed since ceasing employment, weighed heavily in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction concerning a second applicant.