Singh (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant ceasing employment for a period exceeding 90 consecutive days, a breach of condition 8107 of their visa. The applicant had initially been sponsored by NMF Pty Ltd, then transferred to Golden Oak Australia Pty Ltd, which subsequently ceased trading. A further sponsorship transfer to Waraich and Chhina Pty Ltd was lodged but not approved due to business monitoring of that sponsor. The applicant then sought new employment and lodged a visa application with a new sponsor, DS Catering Pty Ltd.

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. It was not disputed that the applicant had ceased employment for more than 90 consecutive days, thus satisfying the ground for cancellation. The central issue therefore became the exercise of the Tribunal's discretion, considering all relevant circumstances.

In exercising its discretion, the Tribunal had regard to the applicant's proactive efforts to secure new employment and sponsorship following the cessation of trading by Golden Oak Australia Pty Ltd and the unapproved sponsorship transfer to Waraich and Chhina Pty Ltd. The Tribunal accepted that the applicant was unaware of the business monitoring of Waraich and Chhina Pty Ltd until their return to Australia. The Tribunal considered the applicant's history of study and employment in Australia, and their efforts to find alternative employment, concluding that the circumstances did not warrant the cancellation of the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 457 visa and substituted a decision not to cancel the visa.