Hussain (Migration)

This matter concerned an appeal by Mr. Hussain against the cancellation of his Subclass 187 Regional Sponsored Migration Scheme visa. The visa was cancelled under section 137Q of the *Migration Act 1958* (Cth) on the grounds that his employment ceased within two years of commencement, and he had not satisfied the Minister that he made a genuine effort to be engaged in that employment for the required period. Mr. Hussain's employment with the sponsoring company, which was for an ICT Security Specialist position in Toowoomba, terminated shortly after it began due to the company's economic downturn and the cessation of a project. The company was subsequently deregistered. Mr. Hussain provided evidence of his subsequent casual employment in the same regional area, his efforts to find work in Brisbane, and strong family and social ties in Australia.

The primary legal issue before the Tribunal was whether Mr. Hussain had satisfied the requirement under section 137Q(2)(c) of the Act to demonstrate a genuine effort to be engaged in the nominated employment for the required two-year period, despite the early termination of that employment. This involved interpreting the scope of "genuine effort" and whether it necessitated continued engagement with the original employer or within the specific regional area. The Tribunal was also required to consider the genuineness of the initial employment arrangement itself, in light of the company's subsequent deregistration and Mr. Hussain's actions upon arrival in Australia.

The Tribunal found that the delegate's decision to cancel the visa was based on an incorrect interpretation of section 137Q(2). Citing *Yoon's case* and *Parekh (Migration) [2018] AATA 2713*, the Tribunal held that the "genuine effort" requirement did not mandate that the visa holder remain in the relevant regional area or continue seeking employment solely with the original nominator. Instead, a genuine effort to secure further employment within a designated regional area could suffice. While acknowledging that the company's deregistration made continued employment impossible, the Tribunal noted that the company was still operating for some months after Mr. Hussain's termination. However, the Tribunal ultimately concluded that it was not satisfied that Mr. Hussain had made a genuine effort to be engaged in the nominated employment for the required period, and that the employment agreement may not have been genuine, potentially being an arrangement to facilitate migration.

Despite the finding that the ground for cancellation might not have been established based on the interpretation of "genuine effort," the Tribunal's overall conclusion was that it was not satisfied that Mr. Hussain had made a genuine effort to be engaged in the employment for the required period. The Tribunal therefore set aside the decision under review.