1505490 (Migration)

[2015] AATA 3490

1505490 (Migration) [2015] AATA 3490 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael James Kelly

CASE NUMBER:  1505490

DIBP REFERENCE(S):  BCC2013/77043

MEMBER:David Dobell

DATE:15 October 2015

PLACE OF DECISION:  Sydney

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 15 October 2015 at 11:06am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 April 2015 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)(b) on the basis that the applicant did not comply with condition 8107 of his last substantive visa. 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 appeared before the Tribunal on 25 September 2015 to give evidence and present arguments. His wife also attended the hearing.

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. From the Department’s movement records, the applicant first came to Australia in July 2010 on a subclass 976 visa. He departed then came to Australia on a subclass 417 visa on 21 September 2011. He was granted a subclass 457 visa on 16 October 2012, and a subclass 050 bridging visa was last granted on 17 April 2015.

6. The Department file holds evidence which indicates that the applicant ceased his employment with SPITHA Pty Ltd on 19 November 2012.

7. Information from ICSE shows that on 14 December 2012 the applicant sent an email to the Department in which he states that he was granted a subclass 457 visa which he states ‘was later withdrawn’ on 16 November 2012.  He states that he applied to Fair Trading NSW who refused to issue him a license based on his overseas qualifications. He said he now needed to apply through TRA who have advised him that his overseas qualifications are sufficient, and he requests further time for this to occur.

8. In the reply of 20 December 2012, the Department advised that he had 28 days to find employment and if this does not occur he will be sent a notice of intention to cancel visa and that at that point he may seek an extension of time. It was noted that at this point his priority was to find a new sponsor and have them lodge the necessary applications as soon as possible.

9. ICSE also records the sponsor’s representative contacting the Department and on 9 April 2013 the sponsor was advised that their sponsor obligations continue until, amongst other things, the Department cancels the visa of the applicant or he is approved for a new visa, neither which had occurred at that time.

10. A notice of intention to cancel the visa was issued on 21 October 2014. On 10 November 2014 the Department received a call from David Falson of East Coast Suspensions, who had offered employment, pending approval of a subclass 457 visa. A nomination was lodged on 17 November 2015 but on 5 January 2015 this nomination was withdrawn.

11. The Department proceeded to cancel the applicant’s visa and he sought a review with the Tribunal. 

12. At the hearing, the applicant gave the Tribunal further documentary evidence:

    ·UK, passport, applicant, front page and Australian entry pages

    ·UK Birth certificate, applicant

    ·NSW TAFE, Award, and Transcript, Certificate III in Automotive mechanical technology (light vehicle), 28 November 2013, applicant

    ·NSW Marriage Certificate, applicant and Mimi El Sayed, 17 January 2015

13. The applicant said he came here on a subclass 417 visa and was working for Lotus for 6 months as a mechanic. They were going to sponsor him but had too many UK mechanics working there so could not.

14. He left and in around 2 weeks had a job lined up with Midas.  He went through their migration agent and at the same time applied for TRA assessment of his mechanic skills. His subclass 457 visa was granted. Around a month later, he heard through his migration agent that his skills assessment had been refused. His migration agent also told him that the Department told him he had to leave his employment.

15. The Tribunal said this was very strange, as a subclass 457 visa would not usually be granted  unless the Department was satisfied he had the necessary skills.

16. He then went off and studied at TAFE and was awarded his Certificate III in November 2013.

17. The Tribunal asked what he was doing after this time. He said ‘nothing much really’. As to how he survived financially he said he was lucky to have generous parents who were supporting him.

18. The Tribunal said it didn’t understand why he did not go out then and find a new sponsor, especially as he had said he didn’t like not working and not being able to support his family.

19. He said he must not have really understood how the visa worked. The Tribunal noted that the email from the Department in December 2012 said he should go and find a new sponsor as soon as possible.

20. When he got the notice of intention to cancel visa it was ‘out of the blue’. The Tribunal noted that it took the Department 2 years to issue this.

21. As to his relationship, he said that he met his wife in November 2013 and they got married in January 2015. They have lived together for 12 months. She has two children, a boy and a girl, aged 12 and 13.

22. The Tribunal noted that he did contact the Department within the 28 days allowed to find a new sponsor, and noted the Department’s response to him.

23. The Tribunal said that it appeared there was a breach here, as he did not have work within 28 days, and he agreed. The Tribunal then turned to the discretion considerations.

24. As to the visa purpose, he had earlier said that it was his intention to come and live and stay in Australia. He wants to get permanent residency and Australian citizenship.

25. As to the reasons and extent of the breach, the Tribunal said it needed to look more into the breach given the unusual claims he has made.

26. As to the degree of hardship, the Tribunal noted the family relationship he has now. There would be financial and emotional hardship for his family if he had to return to the UK. He hasn’t really wanted to think about this, but also knows that he could apply for a spouse visa.

27. He said his wife gets Centrelink benefits of around $1,000 a fortnight and he would get around $1000 a month from his parents.  His parents gave him $30,000 to pay for the wedding reception when they visited Australia in August 2015.

28. He agreed they are not in actual financial hardship and have no debts, but said that it is a bit of a struggle surviving financially. They only pay $360 for rent and the children share a room, which isn’t really good, but they are doing this because of the situation.

29. As to the children’s relationship with their father, they said he doesn’t financially support them and he hardly ever sees them, as he has 2 children from his new relationship. He would not be likely to give permission for the children to get passports or allow them to leave the country. The wife said it would be easy to move if she didn’t have children but they are settled here in school.

30. As to the relevant circumstances, the Tribunal noted this had been discussed earlier.

31. As to his past and present conduct, the Tribunal said it considered him compliant. He also contacted the Department at the time about what was happening.

32. The Tribunal asked again why he did not look for work once he had his Australian mechanic qualifications. He said he was possibly a bit picky, as he wanted to work with racing cars. The Tribunal noted his claim that he was not financially desperate at the time either.

33. The Tribunal said it was unlikely he would end up in detention if his visa was cancelled.

34. The applicant said that he grew up in a family where his mother didn’t work and his father provided. His wife isn’t working and he feels really bad not working every day, like has has since he was 15.

35. The Tribunal gave the applicant 2 weeks to provide evidence of a new job being lined up, and evidence of funds, which would support his claim of how he survived for 2 years without employment.

36. The Tribunal also wrote to his previous employer under s.359 of the Act, requesting information as to why he left his employment. On following this up, the Tribunal was advised that the business had been since sold and the new owner had no information about this employment.

37. After the hearing, on 9 October 2015, the applicant provided the Tribunal with the following:

    ·National Australia bank statement, applicant, showing a cheque deposit of $30,000 on 30 March 2015

    ·Tyreplus, John Predl, letter, 2 October 2015, stating that we will be able to employ the applicant on a full-time basis as a mechanic at their premises at 62 Captain Cook Drive Caringbah

38. The Tribunal also examined the NSW Department of Fair Trading website which confirmed that only a Certificate III is required to work as a light vehicle mechanic. See

39. Turning to the application of the law, 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. Relevant is s.116(1)(b). 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?

40. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa.

41. The full requirements of this condition are set out in the attachment to this decision. In summary, as at the time of visa cancellation it was a breach of this condition if the visa holder did not commence work within 28 days, or ceases employment for greater than 28 days. This has since been extended to 90 days.

42. The evidence before the Tribunal from the applicant and the sponsor is that the applicant ceased employment in November 2012, and has not been employed as a mechanic since, and the Tribunal so finds.

43. Thus the Tribunal is satisfied that the applicant has not complied with condition 8107 of his visa.

44. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

45. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    • the purpose of the visa holder’s travel and stay in Australia
    • reason and extent of any breach of a visa condition (if relevant)
    • degree of hardship that may be caused
    • circumstances in which ground of cancellation arose
    • past and present conduct of the visa holder towards the department
    • if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors
    • whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation
    • whether there would be consequential cancellations under s.140
    • whether any international obligations would be breached as a result of the cancellation
    • the impact on any victims of family violence
    • any other relevant matters raised by the visa holder.

46. This matter is unusual in that it appears that the applicant’s subclass 457 visa was issued without the applicant having the necessary approved qualifications to work as a mechanic in NSW.

47. It is difficult to understand what actually occurred, given the time that has passed, but the Tribunal considers the applicant’s email of December 2012 to the Department to be the most reliable evidence as it is contemporaneous and the applicant appears credible.

48. The Tribunal considers that the applicant discovered that he could not get a NSW mechanic’s license based on his overseas qualifications after he started at Midas, so he had to leave, and then he applied for a positive TRA assessment, and this was refused, and then he had to complete a Certificate III locally to get proper trade recognition and to be able to work as a mechanic here. This occurred in November 2013.

49. This matter is also unusual in that almost two years passed between the applicant and his sponsor notifying that that he had ceased employment and the Department issuing a notice of intention to cancel visa.

50. Had the Department cancelled the applicant’s visa shortly after December 2012, and he had sought a review, the Tribunal may well have affirmed the decision under review. He did not have the necessary approved qualifications to work as a mechanic until November 2013. Further he was not in a relationship with an Australian citizen at that time.

51. Nearly three years after leaving his employ, the applicant is qualified to work as a mechanic and has a documented preliminary offer of employment as a mechanic. Further, he met someone in 2013 and as of January 2015 is now married to them and has her two children from a previous relationship to look after. His wife came to the hearing and talked about how it would affect her and her children if the applicant had to return to the UK now. It goes without saying that the applicant may be entitled to a spouse visa but at this point has not followed up that option.

52. The Tribunal is satisfied that the applicant has not been working illegally in the two years since he left his employment, as he has had financial support from his parents in the UK. However, the Tribunal is surprised that the applicant did not, of his own initiative, go and find a new sponsor and job shortly after November 2013, given his wish to financially support his new family, but instead waited until the Department issued the notice of intention to cancel visa to look into new employment.

53. Be that as it may, considering all of the circumstances above, the Tribunal is of the view that it should exercise its discretion not to cancel the applicant’s subclass 457 visa.

    DECISION

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

    David Dobell

    
    

    Member

    RELEVANT LAW

    Section 116 Power to cancel- as at time of cancellation

    [116] (1)      Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    [(a) repealed/substituted by MA(CGVC)A2014 with effect on and from 11/12/2014 - application see Sch 2 item 22 - LEGEND note]

    (a)      the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    [(aa) inserted by MA(CGVC)A2014 with effect on and from 11/12/2014 - application see Sch 2 item 22 - LEGEND note]

    (aa)        the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)      its holder has not complied with a condition of the visa; or

    ….

    Section 119

    [119] (1)      Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

    (a)      give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

    (b)      invite the holder to show within a specified time that:

    (i)      those grounds do not exist; or

    (ii)      there is a reason why it should not be cancelled.

    [119] (2)      The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

    [119] (3)      The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

    [119] (4)      The other provisions of this Subdivision do not apply to a cancellation:

    (a) under a provision other than section 116; or

    (b)      to which Subdivision F applies.

    Condition 8107 – as at time of grant

    (1)    If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    …

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)    the holder must:

    (i)    work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)    unless the circumstances in subclause (3A) apply — work only for:

    (A)    the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination; or

    (B)    if the sponsor is a standard business sponsor or former standard business sponsor who lawfully operates a business in Australia — an associated entity of the sponsor; and

    [associated entity is defined in reg 2.57(1) for Part 2A - see clause 457.111(3) - it is used but not defined in condition 8107 - LEGEND note]

    (b)    if the holder ceases employment — the period during which the holder ceases employment must not exceed 28 consecutive days.

    (3A) For subparagraph (3)(a)(ii), the circumstances are that:

    (a)    if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    [(a) substituted by SLI 2010 133 with effect from 01/07/2010 - LEGEND note]

    [(aa) inserted by SLI 2010 133 with effect from 01/07/2010 - LEGEND note]

    (aa)    if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)    the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    [associated entity is defined in reg 2.57(1) for Part 2A - see clause 457.111(3) - it is used but not defined in condition 8107 - LEGEND note]

    …