1508907 (Migration)

[2015] AATA 3557

1508907 (Migration) [2015] AATA 3557 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joao Jose Barroso da Cunha Pereira

CASE NUMBER:  1508907

DIBP REFERENCE(S):  BCC2015/1571992

MEMBER:David Dobell

DATE:30 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 30 October 2015 at 3:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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(1)(g) on 30 June 2015 on the basis that r.2.43(1)(l)(iv) was not satisfied. 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 29 October 2015 to give evidence and present arguments.  

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’s subclass 457 visa was granted on 5 March 2014 and was cancelled on 30 June 2015. He was granted a subclass 050 visa on 3 July 2015 and was granted a subclass 820 visa on 15 October 2015.

6. The Department’s ICSE records indicate that the applicant lodged a partner visa application on 4 August 2014.

7. From the decision record provided by the applicant to the Tribunal, on 1 June 2015 the applicant’s sponsor, Jangho Curtain Wall Australia Pty Ltd had their sponsorship cancelled under s.140M of the Act. No new standard business sponsorship was approved.

8. The Tribunal notes from its casemate records that the sponsor has sought a review of this decision. However the matter has not yet been finalised.

9. The Department sent the applicant a notice of intention to cancel visa, and in his response dated 11 June 2015 the applicant advised:

   • he left the sponsor in August 2014
   • he notified the Department of this by email
   • he thought he fell under a bridging visa in relation to his partner visa
   • he now knows that his subclass 457 visa was still active
   • he has employment with a new company MICOS (NSW)

10. At the hearing, the applicant said he lodged his partner visa on 4 August 2014. He said he ceased work at Jingho on 8 August 2014 as he was made redundant. He will provide a copy of the email he sent to the Department. He did not get a response and assumed he was working under a bridging visa granted in relation to his partner application.

11. He said that he is currently working at MICOS (NSW) as a project manager. The business is in aluminium windows and doors. He started there in November 2014. In March or April 2015 he had to travel overseas for work and when he approached the Department to clarify his bridging visa rights they told him he was still on a subclass 457 visa. He was most surprised.

12. When he realised that his subclass 457 visa was still current, he spoke to HR at his work, and they went to see a lawyer/migration agent who said they should apply forthwith and really, he should not be working there.

13. Meanwhile, in July 2015 his previous sponsor’s standard business sponsorship was cancelled and then his visa was cancelled as a result. They went back to the lawyer who told them that he had not lodged the subclass 457 application for some unknown reason.

14. He lodged a review application and the next day saw the Department and got a 050 bridging visa, and then applied for work rights under financial hardship and got that also.

15. In terms of the Tribunal’s discretion, he said he has been in Australia for 6 years and that he was married in October 2013, having been in a relationship since the start of 2011 with an Australian citizen. He has one child, born December 2014 and another due in May 2016.

16. The Tribunal noted that the basis of the breach was not because of anything that he had done. However, it noted that condition 8107 would have applied such that he was required to not be working for his sponsor for greater than 90 days. If he had lodged a 457 visa application in November 2014 he may have been within time. However, the Tribunal accepts his evidence that he believed he was on a bridging visa granted following his partner visa at that time.

17. The Tribunal gave the applicant one day to provide further evidence as discussed.

18. After the hearing, on 30 October 2015, the applicant provided the following:

    ·A copy of the email sent to partner section of the Department on 18 August 2014 in which he advises, amongst other things, that he has been made redundant in relation to his subclass 457 visa and raises the issue of a bridging visa

    ·Marriage certificate, October 2013

    ·Birth certificate for daughter Jasmine, September 2014

    ·Morphology report showing his wife’s estimated due date is 6 May 2016

    Does the ground for cancellation exist?

19. 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. 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.

20. 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 r.2.43(1)(l)(iv) is relevant.

21. The Tribunal is satisfied from the Department’s decision record that on 1 June 2015 it cancelled the standard business sponsorship of the applicant’s sponsor under s.140M and although this decision is under review, at this point the cancellation still stands.

22. For this reason the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

23. 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, whether the visa holder has a compelling need to travel to or remain in Australia
    • the extent of compliance with visa conditions
    • degree of hardship that may be caused (financial, psychological, emotional or other hardship)
    • circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
    • 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 there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
    • whether there would be consequential cancellations under s.140
    • whether any international obligations would be breached as a result of the cancellation
    • any other relevant matters.

24. The Tribunal found the applicant to be a witness of truth. It finds that the applicant’s visa was cancelled for no reason to do with his actions. Rather, it was because of those of his sponsor.

25. Whilst the applicant had left his sponsor well before the visa cancellation, having been made redundant, the Tribunal finds that he did advise the Department of this, and given that he had already lodged a partner visa application it was reasonable for him to be of the view that he would go onto a subclass 030 bridging visa in relation to his partner visa application.  There was no response from the Department at that time.

26. However, it was not necessarily reasonable for him to assume that he had work rights. If he had approached the Department on finding new employment in November 2014 he would have discovered the real situation. However, as he has been granted work rights on his subclass 050 visa, the Tribunal is satisfied that he would have been granted work rights on a subclass 030 bridging visa should he have applied then.

27. In the circumstances the Tribunal considers that there would be significant hardship here if his visa was cancelled. He has a wife and one small child, with another child on the way. He has a compelling reason to remain in Australia.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

29. 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

    
    

    Attachment
    Relevant law

    s116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    … (g)     a prescribed ground for cancelling a visa applies to the holder.

    Where:

    r.2.43 (l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:

    (i)      the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or

    (ii)     the sponsor has given false or misleading information to Immigration or the Migration Review Tribunal; or

    (iii)     the sponsor has failed to satisfy a sponsorship obligation; or

    (iv)     the sponsor has been cancelled or barred under section 140M of the Act; or

    (v)     the labour agreement has been terminated, has been suspended or has ceased;