1507890 (Migration)

[2016] AATA 3441

1507890 (Migration) [2016] AATA 3441 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Seongeun Han

CASE NUMBER:  1507890

DIBP REFERENCE(S):  BCC2015/1355103

MEMBER:Adrian Ho

DATE:02 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 02 March 2016 at 6:03pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 June 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(b) on the basis that the applicant had ceased the employment for which his Subclass 457 visa was granted for more than 90 days in breach of paragraph 8107(3)(b) of Condition 8107.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The tribunal required the applicant to provide certain items of information pursuant to s.359(2).

5. The applicant did not provide the information with the prescribed time period.

6. The tribunal informed the applicant that it no longer had any power to invite the applicant to appear at a hearing in the following terms:

   a.LOSS OF HEARING RIGHT – MR SEONGEUN HAN

   b.On 21 October 2015, the Tribunal wrote to you in accordance with s.359(2) of the Migration Act, requesting information in regard to your application for review of a decision to cancel your Subclass 457 visa.

   c.The Tribunal’s correspondence explained that if you did not provide the information within the prescribed period, or a period as extended, you would lose your right to present evidence and arguments at a Tribunal hearing.

   d.The Tribunal considers that you have not provided all of the information requested by the Tribunal within the prescribed period (or with a period as extended, if applicable).

   e.The Tribunal has no power under s.359B(4) to now extend the time for you to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].

   f.In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, the Tribunal has no power to permit you to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.

   g.The Tribunal will now accordingly proceed to finalise your application for review.

   h.The Tribunal will defer making a decision until 19 November 2015 to allow you, if you wish, to make further submissions or provide further evidence.

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

8. Through his migration agent, the applicant made a lengthy written submission.

9. 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

10. 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(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?

11. 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 attached to the applicant’s visa. This condition applies specifically to the holders or former holders of Subclass 457 work visas. It requires, among other things, that if the applicant ceases employment – the period during which the applicant ceases employment does not exceed 90 consecutive days.

12. In his written submission to the tribunal, the applicant indicates and the tribunal accepts that:

    a.He was granted his 457 visa in February 2013 based on an approved nomination for the occupation of customer service manager;

    b.His sponsoring employer’s business did not go well and the employer was declared insolvent in March 2014;

    c.He left the employ of that sponsor and reported his cessation of employment to the Department in April 2014;

    d.He found a new sponsor who twice sought an approved nomination for him and was twice refused approval by the Department;

    e.13 months after he reported ceasing employment, the Department cancelled his 457 visa;

    f.The failure of the applicant’s approved sponsor’s business, and his ‘forced’ exit from that employment, were no fault of the applicant’s;

    g.Subsequent difficulties with the lodging of a nomination application by his new prospective sponsor, and the refusals by the Department to approve the nomination, were no fault of the applicant’s – the Department deciding that the nomination did not meet all the requirements for approval.

13. Based on the applicant’s own written evidence to the tribunal, the tribunal finds that the applicant’s employment with the original sponsor had ceased by April 2014 when he informed the Department of this, and it never recommenced.

14. By the time the Department cancelled the visa in June 2015, that employment had ceased for far more than 90 days.

15. For these reasons, the Tribunal is satisfied that the applicant has breached condition 8107 and the ground for cancellation in s.116(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

16. 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’.

17. Based on the evidence before the tribunal, the tribunal finds:

    a.That the purpose of the applicant’s stay in Australia on a Subclass 457 visa was to work for his original sponsor or another standard business sponsor with a position approved through the nomination process for which the applicant had the necessary acumen;

    b.That employment has ceased and there is no position for him with the original sponsor based on which he would now meet the criteria for a Subclass 457 visa;

    c.On the evidence, as the employment for which the applicant’s visa was granted ceased now almost 2 years ago the applicant has had sufficient time to make arrangements to depart Australia in the event that he will become an unlawful non-citizen as a result of cancellation, or alternatively, the applicant has had sufficient time to seek a new sponsor and an approved nomination, or an alternative basis for lawful stay in Australia;

    d.On the evidence, there are no children or other members of the applicant’s family unit that will be affected by an consequential cancellations (the applicant advising the tribunal in writing that his relationship with his ex-partner, Oiyeob Jeong, had already ceased in 2014);

    e.The past conduct of the applicant with the Department has been cooperative;

    f.On the evidence, there are no particular circumstance of hardship that will result from cancellation;

    g.On the evidence, cancellation will not result in Australia being in breach of its international obligations.

18. The tribunal gives particular weight to the consideration that the only permitted purpose of the applicant’s Subclass 457 visa is to work for the sponsor in the position and occupation which had been nominated and approved. 

19. As that employment ceased almost 2 years ago the purpose for the applicant to be present in Australia on a Subclass 457 visa does not exist. 

20. The tribunal acknowledges written submissions asserting that matters which rendered the applicant without a sponsoring employer were neither his fault nor entirely within his control.  However, the fact remains that he has had almost 2 years to seek a new sponsor and an approved nomination for a position and has failed to do so, and as there is no approved position by an approved sponsor for him to work in, there has not been, for more than one and half years, any reason for him to hold a Subclass 457 visa.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Adrian Ho
    Member