Joshi (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel Mr. Joshi's Subclass 187 Regional Sponsored Migration Scheme visa. The dispute arose because Mr. Joshi's employment with the sponsoring employer terminated less than two years after he commenced working, which is a ground for cancellation under section 137Q of the Migration Act 1958 (Cth). The Tribunal, constituted by Member Kate Millar, was tasked with determining whether the grounds for cancellation existed and, if so, whether the discretionary power to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether Mr. Joshi satisfied the requirements of section 137Q(2) of the Migration Act. Specifically, the Tribunal had to consider if Mr. Joshi commenced the nominated employment, if that employment terminated within two years of commencement, and crucially, whether Mr. Joshi made a genuine effort to be engaged in that employment for the required two-year period. The Tribunal also had to consider the exercise of discretion regarding the cancellation of the visa, taking into account relevant circumstances and government policy.

The Tribunal found that Mr. Joshi commenced his nominated employment on 15 June 2015, and his employment ceased on 9 September 2016, which was within the two-year period. However, the Tribunal was satisfied that Mr. Joshi made a genuine effort to remain in that employment. Evidence presented, including a letter of complaint to management, indicated a workplace dispute involving aggressive behaviour from a chef de partie, which Mr. Joshi perceived as bullying and unfair treatment. Mr. Joshi had clearly communicated his position regarding his annual leave and his unwillingness to work under those circumstances. Furthermore, the Tribunal considered Mr. Joshi's subsequent employment history in regional Australia as a chef, which aligned with the purpose of his visa. The Tribunal concluded that while the ground for cancellation technically existed, the discretionary power to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Joshi's Subclass 187 visa.