Patel (Migration)

This matter concerned an application for review of a decision to cancel the first-named applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant had not commenced employment with the sponsoring employer, Capital Coast Pty Ltd, which had never traded. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal considered whether the ground for cancellation under s 137Q of the Migration Act 1958 (Cth) existed. This section allows for cancellation if the visa holder has not commenced the nominated employment within the prescribed period and has not made a genuine effort to do so. The applicant conceded that he had not made a genuine effort to commence the required employment within the prescribed period, and the Tribunal was satisfied that the ground for cancellation existed.

The Tribunal then considered whether to exercise its discretion to cancel the visa. The applicant argued against cancellation, citing his and his wife's established links in Australia, the best interests of their Australian citizen son, and the hardship cancellation would cause his family. Additional factors raised included his wife's hearing loss, financial dependence of his parents in India, potential uncertainty for his casual employees, and the COVID-19 situation in India. However, the Tribunal concluded that the circumstances giving rise to the cancellation, including the lack of genuine effort to commence employment with a non-trading entity, carried significant weight and conclusively outweighed the discretionary factors favouring non-cancellation.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 187 visa. The Tribunal also noted that it had no jurisdiction with respect to the other applicant.