1715145 (Migration) - [2019] AATA 1374

1715145 (Migration) [2019] AATA 1374 (2 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1715145
MEMBER:Nicola Findson
DATE:2 May 2019
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 02 May 2019 at 9:40pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminates within 2 years – ‘genuine effort’ to be engaged in the employment – resigned due to significant mental health issues – excessive workload – credible witness – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 137Q, 137T, 348
CASES
Weng v Minister for Immigration and Citizenship (No.2) [2011] FCA 444
Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 July 2017 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant’s employment with his nominated employer terminated within 2 years and he did not make a genuine effort to be engaged in the employment for the required employment period. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants were represented in relation to the review by their registered migration agent.
No hearing was held in this matter as the Tribunal was able to make a favourable decision on the papers.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).
Does the ground for cancellation exist?
Background
The Department’s records indicate that on 16 August 2013, the applicant was sponsored under the 457 visa program by [Company 1] to fill a position of [Occupation 1].
The applicant applied for a subclass 187 visa in October 2015 and was granted an Employer Nomination (Residence) (Class RN) Subclass 187 (Regional Sponsored Migration) visa on 7 April 2016. The applicant resigned from his employment with his nominating employer - [Company 1] - [in] August 2016, and informed the Department that he had done so.
The Department issued the applicant with a Notice of Proposed Cancellation (Notice) of his visa under s.137Q of the Act by letter dated 7 June 2017. In particular, this Notice stated that the applicant had commenced the employment referred to in the relevant employer nomination with [Company 1] on 7 April 2016 but that the employment terminated [in] August 2016. Further, in response to receiving a statement requesting that the applicant’s visa not be cancelled, the Notice set out that the Department had made enquiries with [Company 1], specifically about the applicant’s claims that due to the workload he had to work additional hours, over the daily nine hour shift set out in his employment contract; the nominated position resulted in him suffering from a mental health condition that required psychotherapy sessions; and that he resigned because of the negative impact his work was having on his mental health. The Notice set out that payroll records indicated that the applicant did not work more than 45 hours a week and there were weeks where he worked less than those hours based on what required production; invoices provided show that he commenced psychotherapy sessions in October 2015, before he was granted the visa; and that the Human Resources section of [Company 1] confirmed that the applicant resigned because he received another job offer.
On 29 June 2017, the applicant provided a detailed response to the Notice, together with a number of attachments.
On the basis of the information provided, the delegate found that the applicant’s employment terminated within the two year employment period. The delegate noted that he was satisfied that the applicant suffers from a mental health condition that may have been caused by his workplace. However, the delegate raised his concern that this condition existed before the applicant commenced his application for the subclass 187 visa and for which the applicant was aware there would be a required employment period of two years. The delegate had regard to information provided by the nominating employer that indicated the company was aware of the applicant’s health situation and had attempted to reduce his work hours and looked in to transferring him to another position, and that he had accessed the Employee Assistance Program, but only on one occasion. The delegate was not satisfied that the applicant had made a genuine effort to be engaged in the employment for the required employment period. He was therefore satisfied that a ground for cancellation under s.137Q(2) exists.
Having considered the factors relevant to the assessment of whether to cancel the visa, the delegate took into account that the applicant’s initial travel to Australia was on a working holiday visa and that he found employment in his nominated field and was subsequently sponsored to stay by the employer. The delegate also acknowledged the length of time the applicant had lived in Australia and the dependant visa holder’s profession as a [Occupation 2], which is a profession listed on the Strategic Skills list and accordingly of benefit to Australia. However, taking into account all of the evidence he concluded that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.
During the review process, the applicant provided a statutory declaration sworn 17 July 2018 in support of his review application. The applicant’s representative also provided to the Tribunal an extensive submission which responds to the concerns and findings of the delegate set out in the decision record as well as asserts that the applicant did make a genuine effort to be engaged in the employment for the required employment period and therefore, that the grounds for the cancellation of the visa do not exist and that the visa ought not have been cancelled. The submission was accompanied by further information, including but not limited to:
·A statement of the applicant’s concerns in respect of the delegate’s decision to cancel the visa;
·Screen print outs of SMS messages, dated August 2016, between the applicant and his supervisor at [Company 1], which discuss the applicant’s anxiety and panic attacks;
·Email communications between the applicant and the HR Department of [Company 1], dated August 2016, in relation to the applicant’s mental health and his work related anxiety;
·Letter of resignation signed by the applicant on 29 August 2016;
·Medical evidence from [Dr A] in relation to the applicant’s ongoing anxiety disorder, including certificates for time off work, a reference to [Dr B], Clinical Psychologist, and a prescription for antidepressant medication;
·Report of [Dr B] date 23 August 2016;
·Chronology of main events prepared by the applicant;
·Correspondence from [Company 2] confirming the position in which the applicant was ultimately placed in was advertised on 15 September 2016;
·Numerous references and letters of support in relation to the applicants.
In his statutory declaration, the applicant confirmed he first commenced working at [Company 1], as a [Occupation 1], in July 2013 while he held a working holiday visa. He was subsequently sponsored under the 457 visa program in August 2013, and was granted his permanent subclass 187 visa in April 2016. He sets out that it was a dream come true for him to gain this employment. He also states he was well regarded for his skills and hard work by his employer.
The applicant’s statutory declaration indicates, however, that over time things started to change for the worse. He was assigned to take on additional duties and responsibilities and this led to a very demanding and stressful daily routine for him. He said he carried out his duties at the beginning of the production line, so any delays by him would slow down the entire production. He sets out that it got to the stage where he was unable to take morning or lunch breaks to ensure he completed his job properly, and met deadlines. He said that his life outside of work was also impacted on. He said he would go home exhausted and in a bad mood. He states that in mid-2015, he had a conversation with his supervisor as well as his production manager, to ask them for assistance, because it was “becoming really hard for me to manage everything”. He said “I had to work at a very intense and exhausting pace from the first minute I would step in to the factory at 7am until my 9 hour shift would finish, and sometimes later”.
The applicant indicates in the information before the Tribunal that in response to his discussions with his employer, the applicant had his pay rate increased by $1 per hour; he was assured that additional workers would be employed to help with the workload; and he was invited to start collecting documents to apply for his subclass 187 visa. It is noted that his application for the visa was lodged in October 2015. The applicant indicates that these assurances gave him the motivation to continue working in increasingly difficult work conditions. He sets out that he also first consulted a psychologist, at the insistence of the second named applicant, after his visa application was lodged also in October 2015, which was helpful in giving him the strength and confidence to deal with his work stress.
The applicant indicates in his statutory declaration that things got worse for him in December 2015, when one of his colleagues, a reliable and experienced [co-worker] quit after not receiving a pay rise promised to him, and he was required to take over his job as well. He said after this, and as time went on, despite promises to recruit additional workers, this never eventuated and he started to feel things he had never experienced before – fast heart beats, worrying about not being able to complete tasks or not finishing on time, and worrying about damaging something or hurting someone while lifting heavy [materials] at height. He said that a fatal accident that occurred at the workplace in late 2014 remained in the back of his mind, and his anxiety was exacerbated in about May 2016, when he actually was involved in an incident that involved [equipment] being damaged while lifting [an object]. He states that this incident went unreported. He said that by May 2016, there had still been no new workers employed to assist him with his excessive workload. He spoke to his managers again and asked them to reduce either his work load or hours, because he was unable to maintain the pressure at work.
In July 2016, the applicant took a month of annual leave and returned to [Country 1] to spend time with his family. He states in his statutory declaration that he was able to rest and recharge during this time and returned to Australia feeling positive, with more energy. He indicates though, that as soon as he returned to work, he was told by his Managers that they had not taken any steps to recruit new workers and that his hours would not be reduced as that would have implications for it sponsoring other overseas workers in the future. He said that on being told this, he experienced a strong sense of stress, anxiety and overwhelming frustration. He said that he experienced a level of depression and he started to have frequent panic attacks, both at work and at home before leaving for work. He said he sought help from the counsellor recommended to him by his employer, but the first appointment was very disappointing – he was conscious of the counsellor constantly checking the time on her watch, while he was in tears talking to her. And, the second session was cancelled the day prior by the counsellor. He states that he continued and preferred consulting with his own psychologist and paying for this “out of my own pocket”.
The applicant states that in August 2016, his panic attacks were debilitating to the point that they were hugely impacting on his ability to work. He states that despite talking to management, “they could not help in any way and the only way to take care of my health was to take a break”. On 16 August 2016, the applicant was prescribed medication and two weeks of sick leave by his GP. He states that staying at home on sick leave made him feel bad because he did “not want to be a weight for the company”. He further states that he could have spent more time on sick leave while recovering, but thought that this situation would worsen his mental health and be problematic for the company as well. He said that taking extended sick leave could have been a way to avoid the risk of cancellation of his visa, but it was never his intention to be “smart” or “plan a strategy to build a case”. Instead, he said, after he was unsuccessful in his best efforts to keep working, he decided to resign and inform the Department. He said he felt that he had no other option but to resign from his extremely stressful work environment.
The applicant states that after his resignation he maintained his regular sessions with his psychologist and undertook mental and physical exercise as it was suggested he do. He said that when his mental health started to improve after a few weeks, it was thought that him trying to find another job would be a good thing to do. The information before the Tribunal indicates that the applicant came across an advertisement placed by [Company 2] in mid-September 2016. He was successful with his interview and started in the new job on 19 September 2016. He indicated he was upfront about wanting to do less work to enable his recovery, and the small, family run business agreed to him working a few casual hours each week. He stated his new job was less stressful than his previous role, however, he was still affected by the mental health problems attributable to working at [Company 1]. After considerable thought, and in consultation with his psychologist, the applicant said that despite his experience and passion for [Occupation 1] he came to the conclusion that if he wanted to recover completely, he had to stay away from the field, at least for a while. Regrettably, the applicants’ relationship also succumbed to the applicant’s mental health struggles at around this time.
The applicant is active in the [Country 1] community in Perth. After he ceased working as a [Occupation 1], this community involvement led to him entering into an arrangement with a friend – and establishing [named service provider] – the services of which include providing advice and carrying out voluntary work. The applicant is also currently employed for 4 hours a week as an [Occupation 3] at [a named organisation]. He indicates that he misses [Occupation 1] and would be glad to resume this work when his health allows him to do so. He states he has suffered a setback in his mental health because of his visa cancellation and feels discriminated against because of his mental health issues.
The information before the Tribunal indicates that after the Department contacted [Company 1], an HR officer contacted the applicant and discussed the need to protect the company’s reputation. The officer suggested to the applicant that he should not have reported [Company 1] to the Department, and the applicant believes the HR officer may have had a motive not to accurately report the complete circumstances of his work with the company to the delegate.
The submission prepared by the applicant’s representative indicates that it is not disputed that the applicant commenced working in the employment referred to in the relevant employer nomination. Further, it is not disputed that the applicant terminated the employment [in August 2016] after commencing in that employment (as approved by the subclass 187 visa) on 7 April 2016. It is conceded that the employment terminated before the required employment period of two years.
However, it is submitted that the applicant did make a genuine effort to be engaged in the employment for the required employment period, and therefore that no ground arises for cancellation. It is proposed that the applicant at all times communicated his concerns about his workload and the effect on him to his employer; his employer acknowledged the need for additional worker(s) however failed to recruit to meet that need; and he sought assistance from the employer’s employee assistance program, but found the counsellor he spoke with was ineffective; he sought assistance from his own general practitioner, who prescribed him medication and issued him with medical certificates certifying he was unwell to continue working; there is no evidence of any collusion between the applicant and his employer, or anyone else, or that his cessation of employment was a means to circumvent the objects of the RSMS visa; there is no evidence to suggest that the applicant left the employment with [Company 1] to take on a more attractive job, or a job outside ‘regional Australia’.
The representative discusses several findings made by the delegate, which it is submitted are factually incorrect. Firstly, the delegate found the employer’s payroll records indicated that the applicant did not work more than 45 hours per week. It is submitted that while there were in fact weeks when he did work over 45 hours, this was not the primary cause of his anxiety and stress associated with the job. The nature of the workload overall, in combination with his witnessing of a fatal accident, ultimately generated anxiety and panic attacks which the applicant sought to address through counselling and medical treatment, including medication, and through taking time off. However, these attempts to remedy the mental health problems were not successful.
Secondly, in response to the delegate’s finding that whereas the applicant claimed the work resulted in him suffering a mental health condition that required psychotherapy sessions, the invoices show the sessions commenced in October 2015, whereas the subclass 187 visa was not granted until April 2016. It is submitted that the applicant continued to receive medical and psychotherapy treatment subsequent to the granting of the subclass 187 visa.

Finally, the delegate found that whereas the applicant claimed the work at [Company 1] resulted in negative mental health, the Human Resources section of his sponsoring employer advised the Department that he resigned as he received another job offer. It is submitted, that this is not correct, and the documentary evidence (provided to the Tribunal) indicates that the position which the applicant took up with [Company 2] after resigning from [Company 1] was in fact not advertised or available until after he had actually resigned. It is also submitted that but for the anxiety and mental health condition which his work caused, he would have continued to work for [Company 1], in complete compliance with the conditions of the visa. Further, there is no evidence that the applicant engaged in any fraudulent or devious activity to circumvent the objectives of the migration law generally, or the objectives of the RSMS visa regime specifically. In particular, the applicant rejects the delegate’s suggestion that he left employment at [Company 1] to take on another job, and that this was a more attractive employment offer. It is submitted that at [Company 2], the applicant was paid a lower hourly rate, worked on a casual basis, did not accrue any leave entitlements and it was merely the first job he was able to find as a [Occupation 1] after he left [Company 1].
It is submitted that the applicant’s efforts to address and remedy his anxiety problems which arose from his employment at [Company 1] amount to him having made a ‘genuine effort’ to be engaged in that employment for the required employment period. It is further submitted that had the applicant not suffered the mental health problems which arose from his work at [Company 1], he would have continued working there for the required employment period, and beyond. However, it was simply not possible to continue given the adverse effects on his health. In these circumstances, it is submitted that the Minister should be satisfied that the applicant has made a genuine effort to be engaged in that employment for the required employment period. The submissions sets out that it is not a requirement that a genuine effort’ extends to the continuation of employment in circumstances where that continuation poses a real and significant threat to a visa holder’s physical or mental health, or has other serious adverse consequences on the visa holder, his partner or anyone else. In these circumstances, it is submitted that the applicant’s continuation in the position in light of the professionally diagnosed anxiety and panic attacks which he was suffering also posed a real risk of harm or injury to those he was working with at [Company 1], as part of his duties included the operation of heavy lifting and moving equipment moving extremely heavy loads of [materials]. The applicant had witnessed a fatal accident at the workplace, which contributed to his feelings of anxiety and stress to the point where he could no longer function and he had no choice but to resign.
FINDINGS AND REASONS
Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.
Based on the evidence before it, the Tribunal is satisfied that the applicant commenced the employment referred to in the relevant employer nomination lodged by his employer, [Company 1], on 7 April 2016. The Tribunal also finds that the applicant’s employment in this position terminated [in] August 2016 and that this was within the period of 2 years which started on 7 April 2016. The Tribunal therefore finds that the requirements of paragraph 137(Q)(2)(a) are satisfied in this case.
Paragraph 137Q(2)(b) requires the Tribunal to determine whether the applicant made a ‘genuine effort’ to be engaged in the position of a [Occupation 1] with his nominating employer for the required employment period of two years, which as noted above, commenced on 7 April 2016.
In considering whether the applicant made the requisite ‘genuine effort’ to engage in the employment, the Tribunal has had regard to the dictionary definitions of the words ‘genuine’ and ‘effort’, the relevant Departmental guidelines, as well as relevant case law.
The concept of ‘genuine effort’ Is not formally defined in the legislation. According to the Macquaire Dictionary Online, the word ‘genuine’ is defined to mean: 1. Being truly such; real; authentic… 2. Properly so called … 3. Sincere; free from pretence or affectation.” The word ‘effort’ is also defined to mean: “1. Exertion of power, physical or mental…2. An attempt… 3. Something done by exertion; an achievement…”[1]
[1]
In addition, the Tribunal notes that in Weng v Minister for Immigration and Citizenship (No.2)[2], when considering the meaning of the phrase “genuine effort” in subsection 134(1) of the Act, the Court agreed with the interpretation in Yam v Minister for Immigration and Multicultural and Indigenous Affairs[3] that the word “genuine” means a level of effort that is more than “superficial or token”.
[2] [2011] FCA 444 [at 50]
[3] [2004] AATA 283 at [53]
The Tribunal notes that the relevant Departmental policy guidelines in PAM3 provide the following guidance in relation to ‘genuine effort’.
Employment Terminated
If the employer provides information that the visa holder has permanently ceased to work for the employer, the delegate may issue a notice of proposed cancellation. For more information, refer to Proposing cancellation.
Circumstances may arise where a visa holder is on leave without pay (LWOP) during the required two year employment period. Where an employer has approved LWOP, it is not generally regarded as a break in the continuity of service. Approved LWOP is also a standard condition in most awards. Therefore, any LWOP that has been approved by the employer is not to be regarded as a termination of employment.
Previous periods of employment for the same employer whilst the holder of another class or subclass of visa (such as a UC-457 visa) does not count towards the required period of employment. However, they may be relevant in assessing genuine effort.
Genuine Effort
In order for the grounds for cancellation at s137Q(2) to be made out, not only must the visa holder have not commenced employment or completed the required two year employment period, the visa holder must also have not satisfied the delegate that they have made a genuine effort to commence employment, or to complete the required two year employment period.
Note: The onus is on the visa holder, through their representations, to satisfy the delegate that they have made a genuine effort to commence employment or complete the required employment period.
It is expected that the visa holder will commence employment or complete the required employment period, unless there are compassionate or compelling circumstances that prevented them from doing so. For example, a person cannot be considered to have made a genuine effort where they have ceased employment because a more attractive employment offer from another employer has been made.
In assessing whether the visa holder has made a genuine effort, the delegate should consider:
·the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
·the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia
·in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and
·any other matter which is relevant to the commencement or termination of the employment.
A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include:
·the position was not filled or did not remain viable due to a serious downturn in business activity or
·financial loss, bankruptcy or closure of the business.
A situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort.
While the Tribunal has had regard to the guidelines it has also considered the individual circumstances of the applicant. The Tribunal observes that while it may be guided by policy, it is not bound to follow it.
The Tribunal notes that the evidence before the Tribunal demonstrates different accounts by the applicant and his employer regarding the circumstances of the applicant’s employment and his termination. [Company 1]’s response to the Department’s enquiries, and on which the delegate’s decision was based, was prepared by a new employee of the Human Resources section of the company, who relied on “gathering information” from a supervisor and available documents, and aspects of it are inconsistent with the applicant’s account as well as the documentary evidence before the Tribunal. For example, it is claimed that the company was aware of the applicant’s health situation and considered transferring him to another role, however, before any action could be taken by the company the applicant chose to resign because of another job offer. The applicant’s evidence, including the documentary evidence before the Tribunal, does not indicate that there was ever any discussions between the applicant and his employer about transferring him in to another role, nor does it support the assertion that the applicant resigned from [Company 1] to commence work with another employer. Given these inconsistencies, the Tribunal is not satisfied that the nominating employer’s statements in relation to the course of events leading to the applicant’s resignation are reliable. On balance therefore, the Tribunal attaches more weight to the applicant’s claims in this regard.
In its consideration of whether or not the applicant made a ‘genuine effort’ to engage in the relevant employment, the Tribunal accepts the evidence of the applicant, which has been consistent through the application and review process, and which the Tribunal accepts as persuasive and credible. It accepts that he had worked as a [Occupation 1] with [Company 1] since July 2013. It accepts that over time his daily workload increased and that he raised the difficulties he was having with this with his employer. It accepts that there were assurances made that another worker(s) would be employed to assist with the workload and that the employer wanted to sponsor the applicant’s subclass 187 visa, which motivated the applicant to continue working in the role. It also accepts that the applicant undertook counselling to keep the symptoms associated with what he considered to be his (temporary) stressful workload under control. It is accepted that the applicant’s workload increased to a point considered excessive by the applicant, and that several months after the grant of his visa, the realisation that his employer was not going to recruit an additional worker(s) to offset his workload was the catalyst for significant mental health problems which also impacted on his work and led to him, on professional medical advice, having to cease working at [Company 1] in the nominated position.
In the context of the policy guidelines, there is no suggestion that the applicant and his employer colluded as part of an arrangement to facilitate the applicant’s permanent residence in Australia. In addition, the Tribunal notes the guidelines provide that where the visa holder creates the situation that leads to his termination, he would not be considered to have made a ‘genuine effort’. In this context, the Tribunal has found the applicant’s evidence to be convincing and is satisfied that he did not act in a way to deliberately create a situation, such as to prevent a conclusion that he made a ‘genuine effort’ to be engaged in the position for the relevant period.
Overall, the Tribunal is persuaded by the evidence before it and accepts that the applicant genuinely attempted to maintain his employment. The evidence before the Tribunal indicates that from the time the applicant commenced employment with [Company 1] in July 2013, he was committed to his work. This is reflected in the company’s decision to sponsor the applicant for a subclass 187 visa and the subsequent grant of the visa. The evidence provided to the Tribunal, which was significantly more than that available to the delegate, makes it clear that the applicant made a genuine effort to meet his obligations to his employer and that the deterioration in his medical condition, after the grant of his visa, was beyond his control.
The Tribunal is satisfied that in all the circumstances of this case, notwithstanding the termination of the applicant’s employment before the end of the two year period, that he did make a genuine effort, which was not token or superficial, to be engaged in that employment for the required time.
Accordingly, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Nicola Findson

Member