SINGH (Migration)

This matter concerned an appeal by Mr Singh against the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the *Migration Act 1958* (Cth) was made out. This required determining if Mr Singh had complied with condition 8107 of his visa, which stipulated that if he ceased employment, the period of cessation must not exceed 90 consecutive days. Mr Singh had ceased employment with his sponsor, Indian Food Enterprises, in mid-November 2015, and more than 90 consecutive days had passed without him commencing new employment with an approved sponsor. Consequently, the Tribunal found that Mr Singh had breached visa condition 8107, and therefore the ground for cancellation existed.

The Tribunal then considered whether to exercise its discretion to cancel the visa. While no specific matters were mandated for consideration, the Tribunal had regard to relevant circumstances, including the purpose of Mr Singh's stay in Australia and the ongoing attempts to secure new sponsorship, evidenced by a withdrawn nomination and a subsequently refused nomination. The Tribunal noted that Mr Singh had come to Australia to study and subsequently obtained the Subclass 457 visa to work as a Cook. Despite the cessation of his initial employment, the Tribunal found that the evidence favouring not cancelling the visa outweighed that favouring cancellation, particularly in light of the complexities surrounding the subsequent nomination processes.

Accordingly, the Tribunal set aside the decision to cancel Mr Singh's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction with respect to a second applicant.