1509077 (Migration)

[2015] AATA 3442

1509077 (Migration) [2015] AATA 3442 (14 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David Guiniden Malamnao
Mrs Gracelyn Malamnao
Ms Drexelle Malamnao
Ms Chrysler Malamnao
Ms Terrel Mae Malamnao

CASE NUMBER:  1509077

DIBP REFERENCE(S):  BCC2015/1517328

MEMBER:Glen Cranwell

DATE:14 September 2015

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 September 2015 at 12:07pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8107 by being unemployed for a period exceeding 28 consecutive days. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   RELEVANT LAW

6. Under s.116(1) of the Act, the Minister may cancel a visa if he or she is satisfied that certain specified grounds are made out. These grounds are:

   ·any circumstances which permitted the grant of the visa no longer exist

   ·the visa holder has not complied with a condition of the visa

   ·another person required to comply with a condition of the visa has not complied with that condition

   ·if the visa holder has not entered Australia or has so entered but has not been immigration cleared - the visa would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared

   ·the presence of the visa holder in Australia is, or would be, a risk to the health, safety or good order of the Australian Community

   ·the visa should not have been granted because the application for it, or its grant, was in contravention of the Act or of another law of the Commonwealth

   ·in the case of a student visa, the visa holder is not, or is likely not to be, a genuine student or has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

   ·a ground prescribed in r.2.43 of the Migration Regulations 1994 (the Regulations) for cancelling the visa applies to the visa holder.

7. If the Tribunal is satisfied that the ground for cancellation exists, it must proceed to consider whether to cancel the visa. However, if the Tribunal is satisfied that a prescribed circumstance exists, it must cancel the visa: s.116(3). The circumstances requiring mandatory cancellation are prescribed in r.2.43(2) of the Regulations. They concern: circumstances in which the Foreign Minister has personally determined that the visa holder’s presence in Australia is or would be contrary to Australia’s foreign policy interests, or whose presence may be directly or indirectly associated with the proliferation of weapons of mass destruction; where the visa holder has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security, within the meaning of s.4 of the ASIO Act 1979; and where the Minister is satisfied that the holder of a Student (Temporary) (Class TU) visa has not complied with certain specified visa conditions.

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, the Tribunal has regard to any matters raised by the visa holder as to why the visa should not be cancelled, government policy guidelines, and any other relevant considerations.

9. The Department’s PAM3 ‘General cancellation powers’ at [32.2] lists the following matters that, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under s.116 of the Act:

   ·the purpose of the visa holder’s travel to and stay in Australia

   ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for, and extent of, the breach. As a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control

   ·the degree of hardship that may be caused to the visa holder and any family members

   ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

   ·the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)

   ·if cancellation is being considered because of the circumstances set out in r.2.43(1)(la) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

   ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

   o   if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

   o   whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

   ·if cancellation is being considered because a Student visa holder has breached condition 8202 (that is, on the basis of circumstances set out in r.2.43(2)(b) – whether the breach was due to exceptional circumstances beyond the visa holder’s control

   ·in relation to cancellation of a permanent visa, whether the visa holder has formed strong family, business or other ties in Australia

   ·any other matters raised by the visa holder.

10. In the present case, the delegate in cancelling the visa was satisfied that the ground provided by s.116(1)(b) existed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal must first decide whether the ground for cancellation under s.116 identified by the delegate has been made out. If satisfied such a ground exists, and it is not a circumstance prescribed in r.2.43, the Tribunal must then decide whether to cancel the visa having regard to all the relevant circumstances.

    Non compliance

12. The applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa: s.116(1)(b). The relevant condition was identified by the delegate as condition 8107. This condition requires that the applicant not be unemployed for a period of more than 28 consecutive days. It is not in dispute that the applicant had been unemployed for more than 28 consecutive days. Accordingly, the Tribunal is satisfied that the applicant has not complied with a condition of the visa.

13. As the Tribunal has decided that a ground for cancellation exists, and that ground does not involve circumstances that require cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

14. 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 policy guidelines, relevantly:

    ·the purpose of the visa holder’s travel to and stay in Australia

    ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

    ·the degree of hardship that may be caused to the visa holder and any family members

    ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

    ·the visa holder’s past and present behaviour towards the department

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

    oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

    owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    ·any other matter the visa holder raises.

15. The applicant’s employment with Otswald Brothers came to an end when the company made approximately 300 workers redundant due to an economic downturn.  There is no evidence to suggest that the applicant was at fault in being made redundant.  The applicant provided evidence that he has since been offered employment by Top Pack Pty Ltd as a Diesel Mechanic under their standard business sponsorship.

16. The applicant migrated to Australia on a Subclass 457 visa which was to be in force for 4 years, in the reasonable expectation of being employed by his original sponsor.  For reasons beyond the applicant’s control he was retrenched.  However, Top Pack Pty Ltd has now offered him employment.  He has done nothing devious or untoward in his dealings with the Department, as far as the Tribunal is aware.  In the Tribunal’s assessment, no-one would gain from the continued cancellation of his visa, and considerable and unwarranted hardship would ensure for the applicant.

    CONCLUSIONS

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

    DECISION

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

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Glen Cranwell
    Member