Hu (Migration)

The Administrative Appeals Tribunal considered a decision by the Department of Home Affairs to cancel the visa of Mr Hu, a holder of a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme). The cancellation was based on the applicant's alleged failure to make a genuine effort to be engaged in employment for the required two-year period after the permanent visa was granted. The applicant's employment was terminated shortly after the visa was granted, and he subsequently lodged an unfair dismissal claim.

The primary legal issue before the Tribunal was whether the ground for cancellation under subsection 137Q(2) of the *Migration Act 1958* (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had made a genuine effort to be engaged in the nominated employment for the stipulated period, and to consider all relevant circumstances in deciding whether to exercise its discretionary power to cancel the visa.

The Tribunal found that there was a ground for cancellation under s 137Q(2) as the applicant's employment was terminated, and he had not demonstrated a genuine effort to be engaged in that employment for the required two years. However, in considering the exercise of discretion, the Tribunal gave significant weight to evidence presented by the applicant, including statements from a new managing director of the employer company. This evidence indicated that the applicant had been subjected to bullying and underpayment, that previous management had been removed, and that the applicant was to be reinstated in a permanent position with full benefits. The Tribunal also noted that the applicant had no issues while holding a previous temporary visa and that the interests of any children affected by a cancellation should be a primary consideration.

Ultimately, the Tribunal set aside the decision under review. It concluded that, despite the existence of a ground for cancellation, the circumstances, particularly the evidence of the applicant's treatment by the previous employer and the offer of reinstatement by the new management, weighed heavily against exercising the discretion to cancel the visa. The Tribunal found that it was in the best interests of the applicant not to cancel his visa.