Elshahat (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Elshahat, concerning the cancellation of a Subclass 187 Regional Sponsored Migration Scheme (RSMS) visa. The applicant, Mr. Elshahat, had ceased employment with his sponsoring employer, which was a potential ground for visa cancellation under the Migration Act 1958 (Cth). The employer subsequently provided information to the Department of Home Affairs which, it was later acknowledged, was provided in error. The applicant's circumstances included a divorce, a family dispute over child custody, unpaid compassionate leave, and being unable to return to Australia from Kuwait due to border closures.

The primary legal issue before the Tribunal was whether the ground for cancellation, as stipulated in section 137Q of the Migration Act, existed in relation to Mr. Elshahat's visa. This required the Tribunal to determine if the applicant had, in fact, ceased employment with his sponsor in a manner that would trigger the cancellation power, or if the circumstances surrounding his cessation of employment and the subsequent information provided by the employer negated the existence of that ground.

The Tribunal found that the employer's later correction of information indicated that the initial basis for cancellation was flawed. Considering the applicant's inability to return to Australia due to border closures and the other personal circumstances, the Tribunal was not satisfied that the relevant ground for cancellation under section 137Q was established. Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Elshahat's Subclass 187 visa.