1409740 (Migration)

[2015] AATA 3059

1409740 (Migration) [2015] AATA 3059 (7 July 2015)

DECISION RECORD

APPLICANT:  Mr Kamal Jeet Singh Oberoi

MRT CASE NUMBER:  1409740

DIBP REFERENCE(S):  BCC2014/1196578

TRIBUNAL MEMBER:  Adrian Ho

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 07 July 2015 at 5:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2014 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant’s sponsoring employer had its standard business sponsorship status cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the prescribed grounds incorporated by s.116(1)(g), which include the circumstance where a primary sponsored Subclass 457 visa holder’s standard business sponsor has had its status as such cancelled or barred under section 140M: r.2.43(1)(l).

6. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l) is relevant.

8. In written submissions and material the applicant concedes the standard business sponsor status of the employer who sponsored him on the cancelled Subclass 457 visa had itself been cancelled.

9. The ground for cancellation in r.2.43(1)(l) therefore existed at the time the delegate made the decision.

10. In the decision to cancel the visa the delegate emphasised that the only basis upon which the cancellation was founded was that the sponsor’s status as a standard business sponsor had been cancelled and the applicant could no longer work for that employer on his Subclass 457 visa.

11. The delegate pointed out on page 4 of the decision (f.6) that if the applicant subsequently became sponsored by a new standard business sponsor, and if a nomination was approved based on that sponsorship, then that new employer would “replace” the cancelled standard business sponsor, and the prescribed ground for cancellation would cease to exist (in relation to the new sponsor).

12. The tribunal provided the applicant with time to seek a new sponsor.  He has done so and on 11 May 2015 a Subclass 457 nomination for the applicant was approved (f.70).

13. There being no evidence that any of the circumstances in r.2.43(1)(l) exist in relation to the applicant’s new sponsor, the tribunal finds that the grounds prescribed therein no longer (and do not) exist.

14. There is no evidence that any other ground for cancellation in the Act or Regulations exists in relation to the applicant or his new business sponsor.

15. The tribunal therefore finds that no grounds for cancellation exist.

16. The tribunal considers that unless there is a specific temporal limitation, it is appropriate for it to consider if any ground for cancellation exists (or continues to exist) at the time it takes its decision, rather than at the time the decision under review was made.  In this case, the tribunal can identify no relevant ground for cancellation at the time of this decision.

17. The Tribunal concludes that the visa should not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Adrian Ho
    Member