Yoon (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 187 (Regional Sponsored Migration Scheme) visa held by Mr. Yoon. The Minister had exercised the power under s.137Q of the Migration Act 1958 to cancel the visa, alleging that the visa holder had not made a genuine effort to be engaged in the employment for which the visa was granted for the required two-year period. The applicant contended that the termination of his employment was due to economic conditions beyond his control and that he had made a genuine effort to remain employed.

The Tribunal was required to determine whether the ground for cancellation under s.137Q(2) of the Act had been established. Specifically, the Tribunal had to assess whether the applicant had commenced the nominated employment, whether that employment terminated within two years of commencement, and crucially, whether the applicant had satisfied the Minister that he made a genuine effort to be engaged in that employment for the required two-year period. The visa was granted on 21 October 2015, and the applicant commenced employment as a First Class Welder with Proweld Constructions on 8 January 2016. His employment terminated on 27 May 2016, approximately four months after commencement.

The Tribunal found that Proweld Constructions had provided a statement indicating that the termination was due to a significant economic downturn affecting the business, leading to a redundancy. Further clarification from the employer confirmed that the downturn in the WA mining and manufacturing industries in 2016 necessitated a reduction in fulltime employees and that meetings were held with the applicant to assist him in seeking alternative employment. The employer also stated that the applicant had made a genuine effort to remain with Proweld Constructions for the required two-year period. Based on this evidence, the Tribunal concluded that the applicant had made a genuine effort to be engaged in the nominated employment, and therefore, the ground for cancellation under s.137Q(2) was not satisfied.

Consequently, the Tribunal set aside the decision to cancel Mr. Yoon's Subclass 187 visa and substituted a decision not to cancel the visa. The Tribunal noted it had no jurisdiction with respect to any other applicant.