Singh (Migration)

The Administrative Appeals Tribunal considered a decision to cancel Mr. Singh's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's sponsoring employer, Romanella Corporation Pty Ltd, notified the Department that Mr. Singh had ceased employment on 1 February 2016. This cessation potentially breached visa condition 8107, which required him not to cease employment with his sponsoring employer for more than 90 consecutive days. The Department issued a Notice of Intention to Consider Cancellation, and Mr. Singh, through his agent, responded by explaining that the business had changed ownership in February 2016 and that the new owner, Mr. Frisina, had continued to employ him. The agent asserted that the applicant had continued to work and be paid throughout this period and that the previous employer's notification might have been inaccurate or referred to the business ceasing operations rather than the applicant's employment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the ground for cancellation was established, as the applicant had ceased employment with his original sponsoring employer. However, the cancellation of a visa under this ground was not mandatory, requiring the Tribunal to consider all relevant circumstances in exercising its discretion.

In considering the exercise of discretion, the Tribunal had regard to the purpose of a Subclass 457 visa, which is to work for a standard business sponsor in an approved position. While the applicant's original approved employment had ceased, the Tribunal noted that a new nomination for the applicant for a Pastrycook position with Geo & Jam Pty Ltd (trading as Fusion Café) had been lodged and approved. The applicant had presented compelling reasons to remain in Australia, including an offer of full-time employment with this new employer, who valued his skills. The Tribunal also considered the applicant's arguments regarding the financial and emotional impact of returning to India, as well as potential financial stress on his father.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel Mr. Singh's visa should be set aside. The Tribunal substituted a decision not to cancel the visa. The Tribunal noted it had no jurisdiction concerning a second applicant.