Imran (Migration)

This matter concerned an appeal by Kazy Md Subbir Imran against the cancellation of his Subclass 187 (Regional Sponsored Migration Scheme) visa. The Department of Immigration and Border Protection had initiated cancellation proceedings based on advice from the sponsoring employer, Leny & Khan Pty Ltd, that Mr Imran had failed to commence employment and could not be contacted. The Department issued two notices of intention to cancel the visa, citing the grounds that Mr Imran did not commence employment within six months of the visa grant. Mr Imran, through his migration agent, lodged submissions arguing that the cancellation should not proceed.

The Tribunal was required to determine whether the cancellation of Mr Imran's visa was justified. Key legal issues included whether Mr Imran had made a genuine effort to commence employment, the impact of the Department's alleged failure to notify Mr Imran of his visa grant, and whether circumstances beyond his control excused his non-commencement of employment. The Tribunal also considered the validity of a s.375A certificate and the Department's internal processes and policy advice in relation to cancellation decisions.

The Tribunal reasoned that while s.137Q of the Migration Act 1958 (Cth) provided grounds for cancellation if employment was not commenced, the applicant's circumstances warranted consideration of discretion. The Tribunal noted that Mr Imran contended he was not notified of his visa grant and relied on his migration agent to inform him of the decision. The submissions highlighted that the migration agent had allegedly misled Mr Imran about the visa status, leading to a failure to commence employment within the prescribed timeframe. The Tribunal found that the applicant's reliance on his agent and the Department's delay in notifying him of the visa grant constituted circumstances beyond his control. The Tribunal also considered Mr Imran's history of seeking regional employment and his strong ties to Australia, including an Australian-born child.

Ultimately, the Tribunal concluded that the decision to cancel Mr Imran's visa should be set aside. The Tribunal found that the failure to commence employment was directly attributable to the Department's failure to notify the applicant of the visa grant for over 12 months, and that the applicant had acted in good faith.