Sachdeva (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of an applicant sponsored to work as a Café or Restaurant Manager. The applicant's employment with NK Haider Pty Ltd, trading as Delhi 6 Indian Cuisine, terminated approximately 18 months after the visa was granted, well within the two-year period stipulated by the legislation. The applicant contended that the termination was due to the sale of the business by the sponsor, a circumstance beyond his control.

The Tribunal was required to determine whether the ground for cancellation under section 137Q of the Migration Act 1958 existed. Specifically, the Tribunal had to assess whether the applicant had made a "genuine effort" to be engaged in the nominated employment for the required two-year period, as required by section 137Q(2)(b). The delegate had cancelled the visa on the basis that the employment terminated within two years of commencement, and the applicant had not satisfied the Minister that they made a genuine effort to remain in that employment.

The Tribunal reasoned that the applicant's obligation under section 137Q(2)(b) was to make a genuine effort to complete the two-year period of employment with the original sponsor, NK Haider Pty Ltd. The applicant argued that his failure to complete this period was due to circumstances outside his control, namely the sale of the sponsoring business. The Tribunal accepted that the sale of the business and subsequent settlement on 30 November 2015, which led to the termination of the applicant's employment, was a situation beyond the applicant's control.

Consequently, the Tribunal was not satisfied that the ground for cancellation under section 137Q existed. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa.