Singh (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr. Singh's Subclass 457 (Temporary Work (Skilled)) visa. Mr. Singh, an Indian citizen, had been employed as a Cook in Australia. The cancellation was initiated after his sponsoring employer, Dahab Group, became insolvent. Mr. Singh continued to work in the same position for new business owners who subsequently obtained sponsorship and nomination.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel Mr. Singh's visa under section 116(1)(b) of the *Migration Act 1958* (Cth) was justified, and if so, whether the discretion to cancel the visa should be exercised. This involved considering whether the grounds for cancellation were made out and, if so, evaluating all relevant circumstances, including government policy and the specific facts of Mr. Singh's situation.

The Tribunal found that while the ground for cancellation under s 116(1)(b) was established due to Mr. Singh ceasing employment with his original sponsor and not holding a valid nomination for more than 90 days, the decision to cancel the visa was not mandatory. The Tribunal then considered its discretion, applying principles outlined in the Department's Procedures Advice Manual, which generally favour the visa holder. It noted that the circumstances leading to the cancellation were beyond Mr. Singh's control, he had continued in the same role, and his family would suffer considerable hardship if the visa were cancelled.

Consequently, the Tribunal set aside the decision to cancel Mr. Singh's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.