Hughes (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of the applicant, who had been nominated for employment by Catalpa Resources Pty Ltd. The cancellation was based on the ground that the nominated employment terminated within two years of commencement, and the applicant had not satisfied the Minister that they 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 had made a genuine effort to be engaged in the nominated employment for the required two-year period, given that their employment with Catalpa Resources Pty Ltd terminated in October 2017, shortly after their visa was granted in June 2017.

The Tribunal found that while the employment had indeed terminated within two years, the weight of the evidence favoured the applicant's assertion that the termination was due to Catalpa Resources Pty Ltd's inability to secure a major tender, rather than the applicant failing a workplace alcohol test as initially suggested by the sponsor. The Tribunal noted that the applicant had continued to work for other employers and as a subcontractor while awaiting further work from the sponsor. Consequently, the Tribunal was satisfied that the applicant had made a genuine effort to be engaged in the nominated employment for the required period.

As the Tribunal found that the ground for cancellation did not exist, it was not necessary to consider any discretionary matters. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.