Wang (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Wang, who held a Subclass 187 Regional Sponsored Migration Scheme visa. The dispute arose when the Department of Home Affairs sought to cancel Mr. Wang's visa on the grounds that he had not commenced employment with the sponsoring employer, Global Traffic (QLD) Pty Ltd, as required by the visa conditions. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether the discretionary power to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant's failure to commence employment with the nominated employer constituted a valid ground for visa cancellation under section 137Q of the Migration Act 1958. A further issue was whether, even if grounds for cancellation existed, the Tribunal should exercise its discretion to affirm the cancellation decision, considering the applicant's claims of being an innocent third party to potential fraud by the sponsor and his personal circumstances.

The Tribunal reasoned that the sponsor, Global Traffic (QLD) Pty Ltd, had explicitly stated to the Department that they had no record of employing the applicant and had never sponsored him. This evidence, coupled with allegations of fraud against the sponsor involving non-genuine nominations and visa applications, established that the applicant had not commenced employment as required. While the applicant claimed he was unaware of the fraud and unable to contact the sponsor to arrange employment, the Tribunal found his actions inconsistent with being a victim of fraud. Specifically, the Tribunal noted the applicant's failure to update the Department about significant changes in his circumstances, such as his separation from his wife, and his relatively quick application for citizenship after his visa grant, which suggested a lack of genuine intention to fulfil the employment obligation. The Tribunal concluded that the applicant had not taken reasonable steps to inform the Department of the issues with his employment and that his claims of being unaware of the non-genuine nature of the employment were doubtful.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Wang's Subclass 187 visa. The Tribunal found that the grounds for cancellation were established and that, despite the applicant's submissions regarding his personal circumstances and his claims of innocence, there were insufficient matters weighing against the exercise of the discretionary power to cancel the visa.