1607420 (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant had been offered employment in Mackay, Queensland, and had relocated from Brisbane to commence this employment. The dispute arose when the applicant was informed by the employer that there was insufficient work available at the time of commencement, despite being told they had six months to start. The employer subsequently notified the Department of Home Affairs that the applicant had not commenced employment, leading to the visa cancellation process.

The Tribunal was required to determine whether the ground for cancellation under section 137Q of the Migration Act 1958 (Cth) existed, specifically whether the applicant had failed to commence the nominated employment within the prescribed period and, if so, whether they had made a genuine effort to do so. The Tribunal also had to consider whether, even if the ground for cancellation was established, the discretionary power to cancel the visa should be exercised in the applicant's favour.

In its reasoning, the Tribunal found that while the applicant had not commenced the nominated employment within the specified period, the circumstances surrounding this failure were largely beyond his control. The Tribunal was satisfied that the applicant had moved to Mackay in genuine anticipation of commencing work and that the employer's conduct had misled him. Furthermore, the Tribunal considered the applicant's personal circumstances, including his intention to settle in Australia, the impact of cancellation on his family and fiancée, his impeccable conduct with the Department, and the economic downturn in Mackay which hindered his ability to find alternative employment. The Tribunal concluded that the employer's conduct was unsatisfactory and that the applicant had been placed in a financially stringent and difficult situation.

Ultimately, the Tribunal determined that the discretionary power to cancel the visa should not be exercised. It set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.