SINGH (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who arrived in Australia in 2009, had held various visas as a secondary holder, including a Subclass 457 visa granted in 2015. The applicant's marriage broke down in 2016, and he is now divorced. He has been employed by his cousin, Pamanjit Singh, at her Indian restaurant since his arrival. The applicant sought to remain in Australia to assist his cousin, who has a disabled daughter, by working in her restaurant.

The legal issues before the Tribunal were whether the cancellation of the applicant's visa was justified and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's circumstances, including his reasons for wishing to remain in Australia and any hardship he might suffer if his visa were cancelled. The Tribunal also considered the employer's submission that the applicant's continued employment was beneficial to the business and would allow the employer to spend more time with her disabled daughter.

The Tribunal reasoned that the original purpose of the applicant's visa, which was to live with his spouse, had ceased to exist due to his divorce. While the applicant claimed a compelling need to remain in Australia to assist his cousin in her restaurant and to allow her to care for her disabled daughter, the Tribunal was not satisfied that these circumstances were sufficiently compelling. The Tribunal noted that the cousin had a business partner who assisted in managing the restaurant and that she could employ another cook, although this would involve additional time and expense. The Tribunal weighed these factors in favour of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal decided not to refer the matter to the Minister, noting that the applicant could still make a direct request to the Minister.