1601663 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who had been granted a Subclass 187 (Regional Sponsored Migration Scheme) visa. The cancellation was based on the ground that the applicant had not commenced employment with the nominating employer within the prescribed period, and had not satisfied the Minister that a genuine effort had been made to commence that employment. The applicant’s visa was granted on the basis of a nomination for the position of Cook by Dhillon’s Pty Ltd, trading as Superb Indian Restaurant.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 137Q(1) of the Migration Act 1958 was established. This section permits the Minister to cancel a visa if the holder has not commenced the nominated employment within the specified timeframe and does not satisfy the Minister of having made a genuine effort to do so. The Tribunal was required to assess the evidence provided by the applicant in response to the notice of intention to cancel his visa.

The Tribunal reasoned that the applicant had provided substantial evidence demonstrating a genuine effort to commence employment. This evidence included travel documents to Albury, rental advertisements and receipts, bank correspondence indicating financial difficulties, and letters from associates and family members. These documents collectively suggested that the applicant had relocated to Albury, attempted to secure accommodation, and was seeking to commence work. Furthermore, email correspondence between the applicant and the employer, and statements from the applicant's brother and other associates, indicated that the applicant had indeed commenced work but was not being paid, leading to financial hardship and his eventual departure from Albury. The Tribunal concluded that, based on this evidence, it was not satisfied that the ground for cancellation under section 137Q(1) had been made out.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 187 visa and substituted a decision not to cancel the visa.