Thapa (Migration)

This matter concerned the cancellation of the first-named applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The dispute arose because the applicant did not commence employment with his nominating employer as required. The first-named applicant contended that he had genuinely attempted to commence employment within the stipulated period and presented evidence to support this claim. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal considered extensive evidence provided by the first-named applicant regarding his circumstances, including his educational background, previous employment, and the events leading up to his visa grant and subsequent cancellation. Key to the applicant's case was his reliance on a migration agent, Marie Dawson, who allegedly arranged his sponsorship and employment. The applicant detailed his interactions with Ms. Dawson, including the payment of significant fees, her assurances about the job, and her role as the intermediary with the nominating employer, 123 Finance. He also provided evidence of his preparations for the new role, such as purchasing work attire and discussing commuting arrangements, despite never meeting the nominating employer directly.

The Tribunal found that the first-named applicant had provided sincere and convincing evidence of his genuine attempts to commence employment. It was persuaded that the applicant had acted in good faith, relying on the representations of his migration agent. Consequently, the Tribunal set aside the decision to cancel the first-named applicant's visa and substituted a decision not to cancel it. The Tribunal also noted that it lacked jurisdiction concerning the second-named applicant, whose visa cancellation was a self-executing consequence of the first-named applicant's visa cancellation under section 137T of the Migration Act 1958 (Cth), rather than a decision made by the Department.