SONI (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr Soni against the Department's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Mr Soni had been granted the visa in May 2013, sponsored by Polly Bar Pty Ltd. After the business was sold to The Roy Pty Ltd, Mr Soni was successfully nominated by the new owner. However, his employment with The Roy ceased in June 2015. Subsequently, Mr Soni secured employment with Krishna Café & Indian Restaurant, but their sponsorship and nomination applications were either refused or withdrawn. The Department issued a notice of intention to cancel Mr Soni's visa on the grounds that he had ceased employment with his most recent sponsor for more than 90 consecutive days, potentially breaching visa condition 8107.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the relevant circumstances, including government policy, in determining whether to affirm the delegate's decision to cancel the visa.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Act was established, as Mr Soni had ceased employment with his sponsor for more than 90 days without a valid new nomination. The Tribunal then considered its discretion to cancel the visa. It noted that Mr Soni had completed tertiary studies in Australia and had a favourable skill assessment for the occupation of Cook. However, the purpose of his Subclass 457 visa had ended with the termination of his employment with The Roy, and subsequent sponsorship and nomination applications had been withdrawn. Crucially, Mr Soni's visa was due to expire in less than five days at the time of the hearing. The Tribunal concluded that the evidence favouring cancellation outweighed that favouring non-cancellation, and therefore exercised its discretion to affirm the cancellation of Mr Soni's visa.