Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa granted to the applicant, Ms. Kaur. The cancellation was based on the ground that her employment with the nominated employer, N. May & Associates, had terminated within two years of commencement, and the delegate was not satisfied that she had made a genuine effort to secure alternative employment in a designated regional area.

The Tribunal was required to determine whether the grounds for cancellation under section 137Q(2) of the Migration Act 1958 (Cth) were established. Specifically, the Tribunal had to consider if the applicant had commenced the nominated employment, if that employment ceased within the required two-year period, and crucially, whether she had made a genuine effort to be engaged in that employment or a similar position in a designated regional area.

The Tribunal reasoned that while the applicant's employment had indeed ceased within the two-year period due to the sale of the business, an event beyond her control, the delegate's assessment of her efforts to find alternative employment was flawed. The Tribunal noted that the applicant had provided evidence of her registration with a job search agency, and while direct evidence of applications for specific positions was lacking, the delegate's assumption that she was unlikely to find alternative employment given her qualifications and experience was not sufficiently substantiated. The Tribunal concluded that the circumstances of the business sale meant the applicant was not obligated to secure alternative employment, and therefore, the ground for cancellation under s.137Q(2) was not met.

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