Perez (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Ms. Perez. The visa was cancelled because Ms. Perez failed to commence employment with her approved sponsor within 90 days of the visa grant. Ms. Perez contended that the circumstances preventing her commencement of employment were outside her control, attributing issues to her migration agent, a consultant for the sponsor, and the sponsor itself. She also raised concerns about the genuineness of the job offer and alleged fraudulent conduct.

The court was required to determine whether the cancellation of Ms. Perez's visa was justified. This involved considering the applicant's explanations for failing to commence employment, including claims of being misled by her migration agent and the sponsor's consultant, and allegations that the nominated position was not genuine and that she was asked to pay a substantial sum to secure employment. The court also had to assess whether the sponsor's termination of her employment was lawful and whether Ms. Perez had made any attempts to find alternative sponsorship or employment.

The court noted that there were no specific matters mandated by the Act or Regulations that must be considered in the exercise of the discretion to cancel a visa. However, it was open to the Tribunal to consider relevant factors, including those raised by the applicant and departmental guidelines. The applicant claimed she was advised before her visa grant that the nominated position was unavailable and she was offered a cleaning job instead, and that she was asked to pay a significant amount to commence work. These claims were not substantiated by evidence and appeared to contradict her assertion that she had an agreement with the sponsor to commence employment after her pregnancy. While the sponsor had extended her commencement date by two months due to her pregnancy, Ms. Perez still failed to commence work by the revised date. The court found that the applicant's claims of fraudulent conduct and a non-genuine job offer were not supported by evidence and were inconsistent with other aspects of her account.

The court ultimately set aside the decision under review.