1508168 (Migration) - [2015] AATA 3659

1508168 (Migration) [2015] AATA 3659 (17 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dino Cinco
Ms Josie Cinco
Mr Khobe Christian Cinco
Mr Kerby Cinco
Mr Koji Kenjie Cinco
Ms Kassandra April Cinco
CASE NUMBER:  1508168
DIBP REFERENCE(S):  BCC2015/1097289
MEMBER:Marten Kennedy
DATE:17 November 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal refers this matter to the Minister for Immigration and Border Protection for consideration of the exercise of the Minister’s powers in section 351 of the Act to substitute a decision that is more favourable to the applicant.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 November 2015 at 3:55pm

STATEMENT OF DECISION AND REASONS

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 first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The remaining review applicant’s visas were cancelled by operation of law as a consequence of the first-named review applicant’s visa being cancelled. There is therefore no reviewable decision in respect of the second to sixth-named visa applicants, and the Tribunal has no jurisdiction in respect of them. Their circumstances however have been taken into account in this review.
The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had breached a condition of his visa requiring that if he ceases his employment, the period during which he has ceased employment does not exceed 90 days (condition 8107(3)(b)).
According to the delegate, the applicant’s sponsor and employer, Fluor Australia Pty Ltd, notified the Department that the applicant’s employment ceased on 19 December 2014. According to the Department, there was at the time of the cancellation decision no record of the applicant being the subject of a further application for approval of a nominated position by a sponsor. The applicant does not dispute that the ground for cancellation is established or any of those essential facts. I will consider the particular circumstances in which the ground arose later in these reasons.
I therefore reach the same findings as were reached by the delegate in this regard. I find that the applicant has breached condition 8107(3)(b), which was a condition of his visa. The applicant did not contend that the ground was not established but asks that I take into account a range of circumstances and decline to cancel the visa in his circumstances.
Consideration of discretion and recommendation for Ministerial intervention
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1508168 (Migration)

Details

AGLC: 1508168 (Migration) [2015] AATA 3659
Case: [2015] AATA 3659
Decision Date: 17 November 2015

CaseChat Overview and Summary

The decision in the matter of 1508168 (Migration) concerns the appeal against the cancellation of a Subclass 457 visa held by the first named applicant, a temporary skilled work visa. The decision was made by Marten Kennedy, a member of the Tribunal, who affirmed the decision to cancel the visa but referred the matter to the Minister for Immigration and Border Protection for consideration of the exercise of the Minister's discretionary powers under section 351 of the Act. The Tribunal held no jurisdiction over the other applicants.

The central legal issue before the Tribunal was whether to exercise its discretion to affirm or cancel the cancellation of the visa under the Migration Act 1958 and the Migration Regulations 1994. The Tribunal also had to consider the policy guidelines set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. The Tribunal noted the significant compassionate circumstances and the value of the applicant to his current employer, who was willing to sponsor him for another temporary work visa. However, it was noted that the original visa was a temporary one that would have expired in any event.

In its decision, the Tribunal found that the applicant had breached the visa condition 8107(3)(b), which was a condition of his visa. The Tribunal considered the compassionate circumstances, the applicant's value to his current employer, and the employer's willingness to sponsor him for another visa. However, it concluded that the exercise of its discretion to not cancel the visa would not restore the applicant and his family to the position they would have been in but for the visa cancellation. The Tribunal held that the applicant would still face insurmountable problems for an onshore subclass 457 visa application in terms of the time of application requirements and the schedule 3 criterion. The Tribunal thus affirmed the decision to cancel the visa but recommended that the Minister exercise his discretionary powers to substitute a more favourable decision and referred the matter to the Minister’s office for consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider however that the compassionate circumstances outlined to me, and the value with which the applicant is held by his current employer may be amenable to a resolution outside the confines of the Regulations. In my view, this matter is an appropriate matter to refer to the Minister to consider for the favourable exercise of his public interest powers. I refer the matter because of the compassionate circumstances affecting the applicant’s family members, the applicant’s apparent value to his current employer, and the employer’s expressed willingness to support the applicant for a subclass 457 visa. I am conscious that in these circumstances the Minister retains personal and non-compellable discretion to grant the applicant a substantive visa of a different kind to permit an onshore application for a subclass 457 visa. This will be a matter for the Minister.DECISIONThe Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.The Tribunal has no jurisdiction with respect to the other applicants.The Tribunal refers this matter to the Minister for Immigration and Border Protection for consideration of the exercise of the Minister’s powers in section 351 of the Act to substitute a decision that is more favourable to the applicant.Marten KennedyMember

Ratio Decidendi

Legal Principle Established

I therefore reach the same findings as were reached by the delegate in this regard. I find that the applicant has breached condition 8107(3)(b), which was a condition of his visa. The applicant did not contend that the ground was not established but asks that I take into account a range of circumstances and decline to cancel the visa in his circumstances.Consideration of discretion and recommendation for Ministerial intervention 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’. As outlined in the reasons below, I have considered carefully the factors outlined in the Department’s policy, and all matters otherwise known to me. I consider there are significant compassionate circumstances present in this matter, and evidence that the applicant is required by his current employer who is willing to sponsor him for a further temporary work visa. However, the practical reality of the applicant’s situation is that his subclass 457 visa was a temporary work visa that would have expired in any event, but for the cancellation. I have no power to extend the term of that visa were I to effectively reinstate it. Essentially, an exercise of the discretion so as not to cancel the visa would restore to the applicant a visa that has already ceased, and it would not change the reality of his migration status in Australia. I have considered carefully whether I am able to effectively restore the applicant and his family to the position they would have been in but for the visa cancellation, in terms of applying for a further subclass 457 visa onshore supported by the new employer. Having regard to the applicant’s current employment situation and the compassionate circumstances affecting his family, if I could do so I would. However, I have concluded on careful examination of the Regulations that my exercise of the discretion so as not to cancel the visa would not have that effect. The applicant would still face insurmountable problems for an onshore subclass 457 visa application in terms of the time of application requirements of cl.457.211 of Schedule 2 of the Regulations and Schedule 3 criterion 3004(f) (see Quan v MIMAC [2013] FCCA 1254). In this case, I consider it appropriate to affirm the decision to cancel the visa in the exercise of my discretion, but to recommend that the Minister exercise his personal discretion to substitute a more favourable decision to that of the Tribunal, and to refer the matter to the Minister’s office for consideration. As to the purpose of the visa holder’s travel and stay in Australia, the applicant explained that he had worked for his former employer Fluor as an Industrial Engineer. The applicant explained that he had been working on a project in Roma for Santos that was completed. It was his third project with the company. He had worked with Fluor on projects in Saudi Arabia and was recruited for the project in Australia. The applicant explained the company was expecting to secure another project after the Roma project, but was unexpectedly unsuccessful in its bid. He was made redundant, being the last of the foreign workers to be let go. This lead to the breach of the visa condition. The applicant had difficulty finding a new position in light of the general downturn in the mining sector of the economy.