Somal (Migration)

This matter concerned an application by the applicant, Somal, to review a decision to cancel her Subclass 482 Temporary Skill Shortage visa. The cancellation was based on the applicant ceasing employment with her approved sponsor for a period exceeding 60 consecutive days. The applicant had experienced a series of employer changes and business closures, leading to her being unaware that her second sponsor had become ineligible to sponsor her.

The Administrative Appeals Tribunal (AAT) was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal also considered the applicant's circumstances, including her long period of residence in Australia, her employment history, and the reasons for her sponsors' ineligibility.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. The Tribunal had regard to the applicant's circumstances, including her 12-year residency in Australia, her consistent employment as a cook, and the fact that she was unaware of her employer's change of ownership and subsequent ineligibility to sponsor. The Tribunal noted that the applicant had lodged a Subclass 491 visa application prior to being notified of her employer's ineligibility.

The Tribunal set aside the decision under review and determined that the applicant's visa should not be cancelled.