Chahal (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 nominated by BCK Enterprises Pty Ltd, trading as Buffet Corner, for the position of Restaurant Manager. The dispute arose when the Department of Home Affairs cancelled the applicant's visa on the grounds that she had not commenced the nominated employment within the prescribed period and had not satisfied the Minister that she had made a genuine effort to do so.

The Tribunal was required to determine whether the ground for cancellation under section 137Q(1) of the Migration Act 1958 (Cth) was established. Specifically, the Tribunal had to consider whether the applicant had failed to commence her employment with BCK Enterprises Pty Ltd within the relevant period and, if so, whether she had made a genuine effort to commence that employment. The Tribunal also considered the evidence provided by the applicant regarding the closure of the restaurant for renovations and her attempts to recommence work.

The Tribunal found that the applicant had presented for work on 11 July 2016, shortly after her visa was granted, but the restaurant was closed for renovations. The Tribunal accepted the applicant's evidence that she had made attempts to contact her employer, including an email on 18 July 2016, which went unanswered. The Tribunal noted that the sponsor's claim of the applicant's failure to attend work was communicated via a migration agent and was contradicted by the applicant's account. Crucially, the Tribunal was not satisfied that the applicant had failed to make a genuine effort to commence employment, given the circumstances of the restaurant closure and her subsequent attempts to engage with her sponsor.

Consequently, the Tribunal concluded that the ground for cancellation under section 137Q(1) was not established. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.