2105090 (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant had been granted the visa based on an employer nomination, which required her to commence employment and remain engaged for a period of two years. However, her employment terminated within this two-year period, triggering a potential ground for cancellation under section 137Q of the Migration Act 1958. The applicant claimed to be unaware of any improper dealings between her agent and the sponsoring employer, which an investigation by the Department and Australian Border Force suggested involved cash payments and the non-existence of the nominated position.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 137Q of the Migration Act 1958 existed. Specifically, the Tribunal had to determine if the applicant had made a genuine effort to be engaged in the nominated employment for the required two-year period, notwithstanding the early termination of her employment. This involved considering the applicant's actions after arriving in Australia, her attempts to commence work, and the circumstances surrounding the termination of her employment.

The Tribunal found that the applicant had commenced the nominated employment by attending an orientation day and signing paperwork. However, it was also satisfied that she was not engaged in that employment for the full two years, having been informed by her agent that the job was no longer available. Crucially, the Tribunal was satisfied, based on the applicant's evidence, that she had made a "genuine effort to be engaged for the 2-year period." The Tribunal concluded that the applicant appeared to be a victim of a migration scam and was unable to fulfil the employment obligation due to the employer's non-performance. Considering her continued residence in the regional city, her proactive engagement with the local community, and the circumstances of her employment termination, the Tribunal was not satisfied that the ground for cancellation existed.

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