Lau (Migration)

The Administrative Appeals Tribunal considered the cancellation of a subclass 187 (Regional Sponsored Migration Scheme) visa granted to the applicant, Mr Lau. The Department of Home Affairs had initiated cancellation proceedings on the ground that the applicant had failed to commence employment with his sponsoring employer, Cinix 1 Pty Ltd, within the prescribed period following the grant of his visa. The Tribunal was required to determine whether the ground for cancellation was established and, if so, whether to exercise its discretion to affirm the cancellation decision.

The Tribunal was tasked with determining if the applicant had failed to commence the nominated employment within six months of his visa grant, as required by the Migration Regulations 1994. It also had to assess whether the applicant had made a genuine effort to commence that employment within the stipulated period. Furthermore, the Tribunal had to consider the discretionary power to cancel the visa, weighing various factors including the purpose of the visa, the applicant's compliance with visa conditions, the circumstances leading to the cancellation ground, the applicant's behaviour towards the Department, and any potential hardship.

The Tribunal found that the ground for cancellation was established. Evidence indicated that the applicant was not known to employees at Cinix 1 Pty Ltd and that the employment contract was signed by a former director without board approval, suggesting a sham employment arrangement. The Tribunal concluded that the applicant had not made a genuine effort to commence employment and that the purpose of the visa, which is to fill genuine labour shortages in regional areas, was not fulfilled. In exercising its discretion, the Tribunal gave significant weight to the sham nature of the employment arrangement and the applicant's failure to provide accurate information to the Department, finding these factors detrimental to the integrity of the Regional Sponsored Migration Scheme. While acknowledging some compliance with previous visa conditions and potential hardship, these were outweighed by the serious nature of the immigration fraud.

Consequently, the Tribunal affirmed the Department's decision to cancel the applicant's subclass 187 visa.