Singh (Migration)

This matter concerned an appeal by Mr. Singh against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The Department of Immigration and Border Protection had cancelled Mr. Singh's visa under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that he had breached a condition of his visa by ceasing employment in his nominated occupation for more than 90 consecutive days. Mr. Singh had notified the Department that he ceased employment with Oak Australia Group Pty Ltd on 1 December 2015, and the notice of intention to cancel his visa was issued on 20 October 2016, over ten months later.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Mr. Singh had complied with condition 8107 of his visa, which mandates that the holder not cease employment in a nominated occupation for more than 90 consecutive days. If a breach was found, the Tribunal then had to consider all relevant circumstances in deciding whether to exercise its discretionary power to cancel the visa, even though the ground for cancellation did not mandate it.

The Tribunal found that Mr. Singh had indeed breached condition 8107, as he ceased employment on 1 December 2015 and had not disputed the Department's notification of this fact. The Tribunal then considered the exercise of its discretion, referencing the Department's Procedures Advice Manual (PAM3) which outlines factors to be considered. These included the purpose of the visa holder's stay, the reason and extent of the breach, potential hardship, the circumstances of the breach, the visa holder's conduct, and any international obligations. Mr. Singh had provided details of his arrival in Australia in 2008, his various student visas, his completed and incomplete studies, and his employment as a restaurant manager from January 2014 until 1 December 2015, when he found the restaurant closed and was unable to locate the owner.

After considering all the matters raised by Mr. Singh, both individually and cumulatively, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel Mr. Singh's Subclass 457 visa.