1605074 (Migration)

The Administrative Appeals Tribunal considered the case of a visa holder whose Subclass 187 Regional Sponsored Migration Scheme visa was subject to cancellation. The dispute arose from the Department's assertion that the visa holder had not commenced employment with the nominated sponsor within the prescribed period, thereby failing to meet the requirements of section 137Q(1) of the Migration Regulations 1994. The Tribunal was tasked with determining whether the grounds for cancellation were made out and, if so, whether the visa should ultimately be cancelled, having regard to all relevant circumstances.

The primary legal issue before the Tribunal was whether the visa holder had satisfied the requirement to commence employment with the nominated sponsor within six months of the visa grant date, as stipulated by Regulation 2.50AA(b). This involved assessing the evidence presented by the visa holder, including a statutory declaration and bank statements, which indicated commencement of employment on the visa grant date. The Tribunal also had to consider the Department's evidence, derived from site visits where the visa holder was not present due to annual leave, travel overseas, and a medical condition, and the statements of other visa holders interviewed during these visits.

The Tribunal reasoned that the visa holder had provided sufficient evidence to demonstrate commencement of employment on the date of visa grant, thereby satisfying the requirement under section 137Q(1). The Tribunal found that the visa holder's absences during the Department's site visits were adequately explained by documented reasons, including annual leave, international travel, and a medical condition. Furthermore, the Tribunal noted the lack of substantiation for the Department's claim that other visa holders had not mentioned the applicant working for the sponsor, particularly in the absence of detailed file notes or recordings. Applying the principles that the visa holder must have commenced employment and made a genuine effort to do so within the prescribed period, and considering the evidence presented, the Tribunal concluded that the grounds for cancellation were not established.

Consequently, the Tribunal set aside the decision to cancel the visa holder's Subclass 187 visa and substituted a decision not to cancel the visa. The Tribunal explicitly stated that it did not consider the ground of cancellation under section 137Q(2) as it was not relied upon by the delegate.