Baljeet Kaur (Migration)

This matter concerned the review of a decision to cancel the Subclass 187 Regional Sponsored Migration Scheme visa held by the applicant, Baljeet Kaur. The applicant had been sponsored by Jayshree Enterprises Pty Ltd for the position of retail manager. The visa was granted on 5 June 2017, and the applicant arrived in Australia on 13 June 2017 to commence employment. The applicant's visa was subsequently cancelled on 21 May 2018.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 137Q of the Migration Act 1958 (Cth) were established. Specifically, the Tribunal considered whether the applicant had failed to commence the nominated employment within the prescribed period, or whether her employment had terminated within two years of commencement, and if she had failed to demonstrate a genuine effort to remain engaged in that employment for the required period.

The Tribunal reasoned that the cancellation was not valid under section 137Q(2) because the applicant had never commenced the employment as a retail manager as specified in her employer nomination. The Tribunal noted that the applicant's role between June 2017 and October 2017 involved studying invoices, which did not align with the ANZSCO definition of a retail manager. Relying on the Federal Circuit Court's decision in *Kaur & Ors v Minister for Immigration & Anor* [2017] FCCA 2877, the Tribunal affirmed that the relevant employment for the purposes of section 137Q is strictly that referred to in the employer nomination. The Tribunal found no evidence of fraudulent activity by the applicant, concluding that the actions of the sponsoring employer and its director had, in fact, placed the applicant in a position where her visa was at risk of cancellation through no fault of her own.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 187 visa and substituted a decision not to cancel it. As a consequence of this decision, the cancellation of the visas held by the applicant's husband and daughter were also set aside.