Singh (Migration)

This matter concerned an appeal by Mr. Singh against the cancellation of his Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The cancellation was based on the ground that Mr. Singh had ceased employment and exceeded the 90 consecutive days permitted under condition 8107(3)(b) of his visa without an approved nomination. The decision-maker, the Tribunal, was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether Mr. Singh had complied with the conditions of his visa, specifically condition 8107(3)(b), which mandates that a visa holder must not exceed 90 consecutive days without employment. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if the ground for cancellation was established, by having regard to all relevant circumstances.

The Tribunal found that it was not disputed that Mr. Singh had ceased employment and that this period had exceeded 90 consecutive days, thus satisfying the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth). In considering the exercise of discretion, the Tribunal had regard to Mr. Singh's evidence that he was misled by his employer and believed he was being transferred to another café. The Tribunal also considered evidence from Mr. Singh's spouse regarding their family's ties to Australia and the potential difficulties of returning to India. However, the Tribunal noted that Mr. Singh had not kept the Department informed of his employment situation and that the purpose of his visa was to work in Australia.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Singh's visa, concluding that, considering all the circumstances, the cancellation was warranted.