Parekh (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 857 (Regional Sponsored Migration Scheme) visa granted to Ms. Parekh. The cancellation was initiated by the Minister under section 137Q of the Migration Act 1958 (Cth) on the grounds that Ms. Parekh had not commenced her employment with her sponsoring business, Niki’s Hair Salon Pty Ltd, within six months of the visa grant. The AAT was tasked with determining whether this ground for cancellation was established.

The primary legal issue before the Tribunal was whether the Minister had a valid ground to cancel Ms. Parekh's visa under section 137Q. This required the Tribunal to assess whether Ms. Parekh had genuinely attempted to engage in the employment for which her visa was granted, particularly in light of allegations that her husband owned the sponsoring business and that the business had ceased operating. The Tribunal also implicitly considered the impact of significant periods of sick leave taken by Ms. Parekh and whether the cessation of the business's operations was beyond her control.

The Tribunal found that while concerns about the business's operation had been raised prior to the visa grant, the delegate was satisfied at that time that the business was actively operating. Subsequent allegations regarding the husband's ownership and the applicant's residence were noted but did not appear to have led to immediate action. Crucially, the Tribunal was not satisfied that the ground for cancellation, namely the failure to commence employment within the prescribed period, had been made out. The Tribunal reasoned that the cessation of the sponsoring business's operations, which occurred after the visa grant, was beyond the applicant's control, and that she had made a genuine effort to be engaged in employment.

Consequently, the Tribunal set aside the decision to cancel Ms. Parekh's Subclass 857 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning another applicant.