1505707 (Migration)

[2015] AATA 3640

1505707 (Migration) [2015] AATA 3640 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ernest William Connell

CASE NUMBER:  1505707

DIBP REFERENCE(S):  BCC2014/1718997

MEMBER:Dione Dimitriadis

DATE:16 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

Statement made on 16 November 2015 at 11:05am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 April 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer exist. 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 applied for review with the Tribunal on 27 April 2015 and provided a copy of the delegate’s decision record.

4. The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant was granted a Subclass 401 visa on 20 February 2014.

7. Information in the delegate’s decision record indicates that in a letter dated 8 July 2014 the sponsoring employer (the sponsor), Tokoloshe Pty Ltd ATF The Niconic Trust, informed the Department of Immigration and Border Protection (the Department) that the applicant had ceased employment.

8. On 5 December 2014 the Department issued a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 to the applicant. The NOICC stated that the Department received written advice in a letter dated 8 July 2014 from Tokoloshe Pty Ltd ATF The Niconic Trust (the sponsor) that the applicant ceased employment with the sponsor. The NOICC informed the applicant that there appears to be a ground for cancellation of his Subclass 401 visa because the circumstances which permitted the grant of the visa no longer exist. The NOICC stated that the applicant was granted a Subclass 401 visa on 20 February 2014 linked to the sponsorship of Tokoloshe Pty Ltd ATF The Niconic Trust. The NOICC informed the applicant that at the time of the visa grant he met cl.401.214 which requires that applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. The NOICC stated that as the sponsor has notified that Department, in writing, that he is no longer carrying out the occupation or activity for which the visa was granted, any subsequent travel to, or period of stay in Australia will not be to “carry out the occupation or activity for which the visa is granted” as required by cl.401.214. The NOICC stated that the applicant no longer meets cl.401.214 and is therefore liable for cancellation under s.116(1)(a) as the circumstances which permitted the grant of the Subclass 401 visa no longer exist.

9. The NOICC informed the applicant that if this is the case, his visa may be cancelled under s.116(1)(a). The NOICC invited the applicant to comment on the ground for cancellation and give reasons why his visa should not be cancelled.

10. The Department received a letter from the applicant who stated that, after he sustained an injury while in the employ of the sponsor, he was unfairly dismissed by his employer. He stated that he has doctors’ reports to support his claim. The applicant engaged a lawyer and sent an invoice to recover monies owed but he has not pursued the case as his focus was on his health at that time. The applicant stated that he received an undated letter from his employer informing him that they were cancelling his sponsorship. This sponsorship included accommodation and he was left homeless by his sponsor. He had to go to the rental tribunal to recover monies owed and was never paid his statutory entitlements and nor has he received a group certificate from the sponsor. He did not pursue the Distinguished Talent visa as he wanted to achieve more results with his associated sport before finalising his application and he assumed he had time to do this. Since his departure from the sponsor, he has not participated in any activities outside his visa limitations, but as an applicant he genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa was granted.

11. The applicant stated that he believes his visa should not be cancelled and that the grounds he was granted a visa still exist for the following reasons:

    ·He personally leased an agricultural property in Glenorie New South Wales and contributes $7,440 a month to an Australian property owner and he committed to a 12 month lease of which six months has almost completed. He is liable for the additional six months to the value of $44,640. This property allows the applicant to continue his professional training of his horses and keep him fit as an athlete.

    ·He invested in his own string of young horses from Australian stables with the goal of finding a World Cup/Olympic horse. If his visa is cancelled, these horses will most likely be destroyed as they are all young and green and only at the beginning of their training.

    ·The applicant’s ultimate goal was to become a permanent resident and be eligible to compete in the Australian Olympic show jumping team which as his international results show, he is capable of. His string of young horses will be ready for the 2020 Olympic Games and if he is not accepted as a rider, his horses may be accepted as athletes.

    ·The applicant stated that he has been volunteering in the local pony club to provide free coaching services for young show jumpers. He is committed to developing elite equestrian sport for Australia. The talent is in short supply as Australian riders are forced to head overseas for World Cup careers.

    ·The applicant is no drain on the Australian economy and is actively paying his own way and working to have his international contacts invest in Australia for the sport of equestrian.

    ·The applicant believed he was able to remain in Australia until October 2015.

    ·The applicant does not want to become an unlawful citizen and hopes that the reasons his visa was granted still remain.

12. On 20 April 2015 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

13. At the time of lodging the application for review with the Tribunal, the applicant provided email correspondence between himself and the delegate. In an email dated 21 April 2015, the applicant stated that he has secured a new sponsor. The sponsorship arrangement was finalised over the last few weeks and he understood that he had until 8 June 2015 to finalise this and was distressed to receive the cancellation. The previous sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust brought the applicant to Australia to be a professional show jumper and that occupation or activity still exists in Australia. The applicant secured his sponsor on 30 December 2014. The applicant stated that it is incorrect that it took him 9 months to find a new sponsor. The 400 series application was submitted on 13 January 2015 which was 6 months from the termination of his employment with his previous sponsor. The applicant appreciates the extension of time that was granted due to his injury.

14. The applicant stated that the communication indicates that an application to sponsor him was withdrawn. However, the applicant was not aware that the application has been withdrawn. The applicant stated that he was informed by the delegate that he had 60 days to secure an additional sponsor which gave him until 8 June 2015.  The applicant stated that when he was advised on 14 April 2015 that the delegate was going to review his visa status by the end of the week, he was in the final stages of securing another sponsor and they just had to complete the paperwork.

15. On 13 July 2015 the Tribunal wrote to the applicant and invited him to a hearing on 25 August 2015.  

16. On 22 July 2015 the Tribunal received a response from the applicant who stated that he would attend the hearing on 25 August 2015.

17. The Tribunal was unable to hold the hearing on 25 August 2015 and informed the applicant that the hearing had been postponed until 6 November 2015.

    The Tribunal hearing

18. The Tribunal informed the applicant that the delegate cancelled the visa under s.116(1)(a) as the circumstances which permitted the grant of the Subclass 401 visa no longer exist. The Tribunal informed the applicant that the delegate was satisfied that the applicant no longer met cl.401.214 because he was no longer employed by his sponsor and the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted. The Tribunal informed the applicant that the issue is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

19. The applicant stated that he came here on a Working Holiday visa and found a sponsor here in Australia. The applicant confirmed that his visa would have lasted until 10 October 2015 if his visa had not been cancelled. The Tribunal brought to the applicant’s attention that if the cancellation is set aside the visa will have already ceased.

20. The Tribunal informed the applicant that it will firstly decide if the ground for cancellation has been made out. The applicant stated that he is a show jumper. The horse tipped back as it reared and he fell off and did his “back in”. He was in hospital and was off work for 3 to 4 weeks. The sponsor was not happy. The sponsor was very competitive and wants his horses out every weekend. However the applicant could not do that because of his back. It caused a conflict with the sponsor and there were arguments between himself and Mr Ludde Ingvall of the sponsor.

21. The applicant stated that they parted ways over a year ago in 2014. The Tribunal brought to the applicant’s attention that by 8 July 2014 when the sponsor informed the Department that his employment had ceased, he had already stopped working for the sponsor.

22. The Tribunal asked the applicant if he had found another sponsor that was approved between the date he stopped working and the date of cancellation. The applicant stated that he was going out with someone and her mother was going to sponsor him. It was lodged but then he broke up with this person and the application was then withdrawn. In the meantime the applicant had an accident and snapped his leg. He got a plate in his ankle about Christmas time in 2014 and he was off work for 4 months with bed rest.

23. The Tribunal informed the applicant that the evidence was that he was not carrying out the occupation or activity for which the visa is granted after he stopped working for the sponsor. The applicant stated that there was a limitation on his visa which said that he could only be employed by the sponsor. However he was still riding and he had to keep himself fit. The applicant was told that he was not allowed to work for someone else.

24. The Tribunal informed the applicant that if it found that the ground for cancellation exists, then the Tribunal will look at whether the visa should be cancelled.

25. The applicant stated that the purpose of his travel to and stay in Australia was to show jump for the Australian team. It was his ambition. He came to Australia on a Working Holiday visa. He is a professional showjumper and jumped for the British team. The applicant wanted to bring his expertise to train young kids.

26. The applicant stated that he has complied with all of the visa conditions. He has carried on riding his own horses. He brought one from the United Kingdom and one from Germany. The one from Germany came to Australia about four months ago and the other one came to Australia in about April 2014. He also has six of his own racehorses off the track. They are being rehabilitated so that he can keep show jumping. They are being kept at a property at Cattai. The applicant has the horses at his fiancée’s place.

27. Regarding the degree of hardship that may be caused, the applicant stated that he will be affected financially because he has paid import tax for the horse from Germany. He already had those racehorses and they are likely to be put down if he has to leave Australia. They are two year old horses and are wild and he is trying to educate them. The horse that came from the United Kingdom originally came from Germany. It cost the applicant $40,000 to bring the horse from Germany to Australia. This horse came to Australia six or seven months ago. The horse that came from the United Kingdom is in Western Australia and is being ridden by someone else. The applicant still owns him. The racehorses were going to the slaughterhouse and the applicant stopped them going there. He will lose money for the importing of the horse. It will cost him more money to take him back.

28. The applicant also stated that he will have to leave his fiancée. It will financially destroy them. There is not much money in the business. He loves being here and riding in Australia. The applicant’s father died at the age of 51 years from a heart attack and the applicant came to Australia and it has helped him out being here.

29. The applicant confirmed that the circumstances in which the ground for cancellation arose was that the relationship broke down between the applicant and the sponsor.

30. The applicant stated that he lives with his fiancée, Natasha, who has two children. She is Australian. She works and supports him financially.

31. The applicant stated that he genuinely came to Australia to help. He is not here to “bludge”. If his visa is cancelled it is the end of the road financially. All he wants to do is eventually provide for Natasha and the two children. She has supported him. The applicant stated that he is an asset. He won a triple gold medal for Britain in the team and individual events and was European gold medallist in 1999. The applicant stated that he turned professional at the age of 11 and was in the British team at the age of 13 years.

32. The applicant stated that he has another sponsor, Procuredge Pty Ltd, which has been approved as a sponsor. The representative of this new sponsor, Bernadette O’Regan, attended the hearing but had to leave after receiving a telephone call about one of her children. She is sponsoring the applicant to ride their horses, to train and do show jumping.

33. The applicant stated that Ms O’Regan said that she could give evidence on the telephone if needed. The Tribunal took an adjournment so that the applicant could contact Ms O’Regan and see if she was able to take a call from the Tribunal.

34. After the adjournment the applicant stated that Ms O’Regan was available to take a telephone call. However, the Tribunal made several attempts to telephone the mobile number provided but a voicemail message came up each time. The Tribunal informed the applicant that it would allow until 10 November 2015 for any further evidence to be provided.

35. The Tribunal informed the applicant that it has undertaken a search of the Department’s records and they showed that Procuredge Pty Ltd was approved as a sponsor on 10 November 2015. The applicant stated that the sponsorship was in relation to him. The Tribunal informed the applicant that it had not seen any evidence that the sponsorship has been approved in relation to the applicant.

36. The applicant stated that the circumstances in which the ground for cancellation arose was because the relationship broke down between himself and the sponsor.

37. The Tribunal proceeded under section 359AA of the Act and gave to the applicant particulars of information which the Tribunal considers would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.  The Tribunal informed the applicant that the particulars of the information are that allegations were received by the Department including that the applicant had issued threats against his previous sponsor and had damaged accommodation owned by the sponsor, that the applicant had claimed injuries and that he had beaten a horse with a pole. The Tribunal informed the applicant that the information is relevant to the review because if the Tribunal accepts these allegations, the Tribunal may have regard to them in considering its discretion as to whether to cancel the visa, if the Tribunal has found that a ground for cancellation exists.  The Tribunal informed the applicant that it may then affirm the cancellation of the visa.

38. The applicant stated that he understood the information and understood the relevance. He did not wish more time to comment on or respond to the information. He stated that the information is not true at all. Regarding the allegation about the horse, the applicant stated that the RSPCA came to see him and the horse was fine and they also came to the Kitara property and saw that the horse was fine. The sponsor made these allegations because they wanted to get him out of the house. The applicant stated that he denies the allegations that he had made threats. As for the property, he had taken photographs of the place which was like a groom’s quarters and there was no damage.

39. On 9 November 2015 the Tribunal received an email from the applicant who stated that he would like to start a new life here. He would be a great help to Australian equestrians as he brings great knowledge to the sport. His goal is to represent the Australian team. He is capable of doing so as he has represented the Great Britain team and he would love to share his knowledge with the youth of Australia. Cancelling his visa would affect all his horses which he currently has in Australia. He recently brought a horse from overseas. It took a lot of finance to bring him here and it would destroy the applicant financially. He has been with his fiancée for seven months. She has two children. His aim is to get back the job he loves and to support the family. His dream is to be an Australian citizen.

40. On 10 November 2015 the Tribunal received an email from Bernadette O’Regan who stated that Procuredge Pty Ltd has agreed to sponsor the applicant as a show jumping trainer and coach to grow and develop its equine business and support the sport of show jumping in Australia. The applicant’s skills are not readily available in Australia and are critical to the growth of the business.  

41. 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 ground set out in s.116(1)(a). 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?

42. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

1. The applicant was granted a Subclass 401 visa on 20 February 2014.

2. Clause 401.214 provides:

   The applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:

   (a)      whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)      whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and

   (c)      any other relevant matter.

3. The sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust, in a letter dated 8 July 2014, informed the Department that the applicant had ceased employment with them. The applicant confirmed that he had ceased working for the sponsor by that date. The Tribunal is satisfied that by 8 July 2014 the applicant had ceased working for the sponsor.

4. The applicant stated that he kept riding and he had to keep himself fit. The applicant stated that he was told that he was not allowed to work for someone else. The Tribunal has taken into account the applicant’s evidence but is not satisfied that he carried out the occupation or activity for which the visa was granted from 8 July 2014 until the visa was cancelled on 20 April 2015.

5. The applicant tried to find another sponsor but was unable to do so prior to the visa being cancelled. Because the applicant was not carrying out the occupation or activity for which the visa was granted from 8 July 2014 to the date of the cancellation (20 April 2015) the Tribunal is satisfied that the applicant did not genuinely intend to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

6. Although the applicant has found a new sponsor, there is no evidence that a nomination has been approved or that the sponsorship has been approved in relation to the applicant. The Tribunal is satisfied that the circumstances which permitted the grant of the visa no longer exist. The applicant is not working currently according to his evidence and therefore at time of decision he is not carrying out the occupation or activity for which the visa was granted.

7. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

8. 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

9. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to show jump for the Australian team. This was his ambition. The applicant came to Australia on a Working Holiday (Subclass 417) visa. He is a professional showjumper and jumped for the British team. The applicant gave evidence that he wanted to bring his expertise to train young children here.

10. The applicant stated that he found a different sponsor after the relationship between himself and the sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust, broke down. However, that sponsorship application by the different sponsor was withdrawn. The applicant then found another sponsor, Procuredge Pty Ltd. The applicant continues to want to do this work in Australia and he has found a new sponsor although the sponsor did not give evidence at the hearing and there is no evidence that a new nomination has been approved.

11. The applicant was granted a Subclass 401 visa which is a temporary visa.  Even if the Tribunal accepts the evidence of the applicant that he has a new sponsor and the reason he was no longer employed by the sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust, was because of a breakdown in their relationship after the applicant suffered injury from a fall off a horse, the situation now is that the applicant does not have an approved nomination in relation to the applicant. There is no evidence of an approved sponsorship in relation to the applicant. The Subclass 401 visa is a temporary visa of limited duration related to working for a particular sponsor in the occupation of Head Rider and Coach. The Tribunal finds that the applicant has not worked in this occupation from at least July 2014. 

    Circumstances in which ground of cancellation arose 

12. The ground for cancellation arose after the relationship ta the applicant and the sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust, broke down.

13. The Tribunal gave information to the applicant pursuant to s.359AA of the Act about allegations made by the sponsor. The applicant has denied those allegations and stated that they are not true at all. The Tribunal took evidence from the applicant on oath. The Tribunal did not have the opportunity of taking evidence from a representative of the sponsor. The allegations of the sponsor are unsubstantiated. The applicant denied cruelty to an animal and stated that the RSPCA came to see him and the horse was fine and they also came to the Kitara property and saw that the horse was fine. The applicant claimed that the sponsor made these allegations because they wanted to get him out of the house. The role of this Tribunal is not to decide whether the allegations are true. Nevertheless it is apparent that the employment relationship broke down and the applicant ceased his employment with the sponsor, Tokoloshe Pty Ltd ATF The Niconic Trust.

14. The Tribunal has considered the applicant’s evidence that he has continued to ride and keep fit. The Tribunal is satisfied that the applicant wants to continue to live in Australia and he has ambitions of riding in the Olympics in 2020 or that one of his horses is so involved. However, the applicant stopped working for the sponsor by July 2014.

    Extent of compliance with visa conditions

15. The delegate found that the applicant breached condition 8107 because he was working for himself and volunteering at a local pony club. The delegate found that these activities are in breach of condition 8107 subject to which his visa was granted.

16. The applicant stated that he has complied with all of his visa conditions. However, the Tribunal considers that the applicant has breached condition 8107 because for a period he was working for himself and was volunteering at the pony club.

17. The applicant has had an opportunity to mitigate the breach by finding employment with another sponsor. In this case, the Tribunal finds that the applicant has taken steps to commence employment with another sponsoring employer.  The applicant informed the Tribunal that he had found two other employers who were willing to sponsor him. One employer withdrew the sponsorship and the new sponsoring employer, Procuredge Pty Ltd has recently been approved as a sponsor but there is no evidence that the nomination has been approved in relation to the applicant. The applicant stated that he is not currently working.   

18. At the time of the Tribunal’s decision, it has been approximately one year and four months since the applicant was employed by the sponsor. The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer and for the nomination to be approved. The Tribunal finds that the applicant’s failure to commence employment with a new sponsor one year and four months after the non-compliance represents a breach of condition 8107.

    The degree of hardship that may be caused

19. The Tribunal has considered the evidence that the applicant will be affected financially because he has paid import tax for the horse from Germany and he also brought a horse from the U.K. The applicant knew, at the time he brought his horse from the U.K., that his visa status was in issue as he had been issued with a NOICC on 5 December 2014. As well, he brought a horse from Germany at a time when his visa was cancelled. The applicant stated that he spent $40,000 to bring the horse here and he will have to spend money to take the horse back to the U.K. with him if he has to leave. The applicant must have known that it was not definite that he would be able to remain here yet he spent money and brought his horses to Australia. The Tribunal is not satisfied that expending significant amounts of money at a time when the applicant’s visa status was in issue is a reason for the Tribunal not to cancel the visa.

20. The applicant has also given evidence that he has racehorses which are likely to be put down if he has to leave Australia. The applicant stated that the racehorses were going to the slaughterhouse and he stopped them going there. The Tribunal has considered this evidence but is not satisfied on the evidence that the horses will have to go to the slaughterhouse if he has to return to the U.K. It is possible that other homes may be found for the horses. It is apparent that the applicant has connections and has found three different persons or businesses that are willing to sponsor him. The Tribunal considers that the applicant may be able to find an alternative home for the racehorses.

21. The applicant stated that he will have to leave his fiancée and her two children. He would like to earn money and support them because she has supported him while he could not work.  It will financially destroy them. However, the applicant has not provided supporting evidence from his fiancée. She did not come to the hearing and did not provide a statement after the hearing. The Tribunal has considered the applicant’s evidence but is not satisfied that his relationship with his fiancée and her two children are reasons not to cancel the visa. 

22. The applicant loves being here and riding in Australia. He wants to ride for Australia and he has the skills and ability to do so, having ridden for Great Britain. The Tribunal has considered the evidence from the applicant and from Ms O’Regan about the applicant’s skills and talent.  However, the Tribunal is not satisfied that the skills and talent of the applicant are reasons not to cancel the visa.

23. The Tribunal accepts that the visa cancellation would cause some hardship to the applicant who has lived in Australia since April 2013. He has given evidence that he has ties to the Australian community in that he has a fiancée who has been supporting him. However, she did not come to the hearing or provide evidence about their relationship. The applicant is 30 years old and has skills and experience as a Head Rider and Coach. He is also a professional show jumper and represented Great Britain in team and individual events. Based on his skills and qualification, the Tribunal is satisfied that the applicant would be able to re-establish himself in the United Kingdom, his home country. Whilst the cancellation means that the applicant would have to return to the U.K., the applicant held a temporary visa here. The Tribunal finds that he would not have had a real expectation that he would be able to remain in Australia on a permanent basis.  The Tribunal is satisfied that the applicant will be able to work and support himself in the U.K. where he speaks the language and has skills, experience and qualifications and has spent most of his life there.   

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

24. The applicant’s visa was cancelled on 20 April 2015 and he has held a Bridging E visa from 29 April 2015. He has had no work rights since 20 April 2015. The Tribunal does not have evidence before it that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

    Past and present conduct of the visa holder towards the department

25. There is no evidence that the applicant has breached other conditions besides condition 8107. There is no evidence that the applicant has been other than compliant with the Department except for the breach of condition 8107.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors

26. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    Whether any international obligations would be breached as a result of the cancellation

27. There is no evidence before the Tribunal regarding this matter.

    The impact on any victims of family violence

28. There is no evidence before the Tribunal regarding this matter.

    Whether there would be consequential cancellations under s.140

29. There is no evidence that there would be consequential cancellations under s.140 of the Act. 

    Any other relevant matters  

30. The applicant’s visa was due to cease in October 2015 if it had not been cancelled. The Tribunal has considered this factor but acknowledges that the applicant lodged the application for review on 27 April 2015 and the Tribunal was unable to proceed with the first hearing. At that time, the applicant’s visa would not have ceased. The Tribunal has decided not to take into consideration the fact that the applicant’s visa would have ceased on 10 October 2015 if it had not already been cancelled.

    CONCLUSIONS

31. The Tribunal has considered and weighed all of the relevant circumstances of the applicant’s case. The applicant has not worked for a sponsor in the occupation or activity for which the visa was granted for approximately one year and four months. The applicant stated that he has not worked since his visa was cancelled. Even if the applicant’s Subclass 401 visa were not cancelled, the applicant would be unable to continue to meet the requirements for a Subclass 401 visa, given that he does not have an approved nomination from a sponsor in relation to the applicant. It is a requirement of cl.401.212 that there is an approved nomination of an occupation or activity approved under s.140GB of the Act and the approval has not ceased. 

32. The Tribunal acknowledges that the applicant has taken steps to commence employment with another sponsoring employer. However, he has not been successful in obtaining a new approved nomination at the time of the Tribunal’s decision even though the sponsorship has now been approved. There is no evidence that a nomination application had been lodged by the new sponsoring employer. The Tribunal accepts that cancellation of the visa would cause the applicant some hardship, but the Tribunal is not satisfied that the hardship will be serious. He was granted a Subclass 401 visa which is a temporary visa. He will return to the U.K. where he lived until he came to Australia. He has represented Great Britain in showjumping.   

33. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

    Dione Dimitriadis
    Member