1715145 (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The cancellation was based on the ground that the applicant's employment with the nominating employer terminated within two years of commencing the nominated position, and the Minister was not satisfied that the applicant had made a genuine effort to be engaged in that employment for the required period.

The Tribunal was required to determine whether the ground for cancellation under section 137Q of the Migration Act 1958 (Cth) existed. Specifically, the Tribunal had to assess whether the applicant's employment termination within the prescribed two-year period was accompanied by a failure to make a genuine effort to engage in the employment. This involved considering the applicant's reasons for resignation, including claims of excessive workload and resulting mental health issues, and evaluating the evidence presented by both the applicant and the nominating employer.

The Tribunal found that while the applicant's employment did terminate within the two-year period, and the applicant did suffer from a mental health condition potentially linked to his workplace, the evidence did not support the conclusion that the applicant failed to make a genuine effort to be engaged in the employment. The Tribunal accepted the applicant's evidence regarding the excessive workload and its impact on his mental health, noting that he had sought psychotherapy and resigned due to these issues. Despite the employer's assertions about the applicant receiving another job offer and the timing of his psychotherapy sessions, the Tribunal was not satisfied that these factors negated the applicant's genuine efforts to continue in the role given the circumstances. Consequently, the Tribunal concluded that the ground for cancellation did not exist.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa.