Kapadia (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of Ms. Kapadia. The cancellation was based on the ground that Ms. Kapadia failed to commence employment with the nominating business, Admirari Twenty Five Pty Ltd ATF Hurleys’ Investment Trust (Hurley's), within the prescribed period following the grant of her permanent visa. The dispute centred on whether the circumstances surrounding the non-commencement of employment were beyond Ms. Kapadia's control and whether discretion should be exercised to allow her to retain her visa.

The Tribunal was required to determine whether the failure to commence employment within the prescribed period was due to circumstances beyond Ms. Kapadia's control. It also had to consider whether, in light of all relevant factors, the discretion to cancel the visa should be exercised. These factors included the circumstances leading to the grounds for cancellation, Ms. Kapadia's past and present behaviour in relation to the Department, her community ties, the hardship that cancellation would cause to her and her family, and crucially, the best interests of her child.

The Tribunal found that Ms. Kapadia had made genuine efforts to commence employment with Hurley's, having entered into an employment contract that was used for the nomination process. However, shortly after the nomination was approved and prior to the visa grant, the owner of Hurley's informed Ms. Kapadia of her cancer diagnosis and sold the business. The Tribunal accepted that this sale, coupled with the disorganisation of the owner at the time, led to circumstances beyond Ms. Kapadia's control that prevented her from commencing employment as planned. The Tribunal also considered Ms. Kapadia's significant ties to Australia, her valued employment history with the sponsor, the financial hardship cancellation would cause, and the consequential cancellation of her daughter's visa, noting that the best interests of the child were a primary consideration.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Ms. Kapadia's Subclass 187 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.