1510214 (Migration)

[2015] AATA 3739

1510214 (Migration) [2015] AATA 3739 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Kumar Bula

CASE NUMBER:  1510214

DIBP REFERENCE(S):  BCC2015/1517247

MEMBER:Glen Cranwell

DATE:26 November 2015

PLACE OF DECISION:  Brisbane

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 26 November 2015 at 11:09am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 July 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)(b) on the basis that the applicant breached condition 8107 of his visa. 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 26 November 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. Under s.116(1) 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)(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?

6. 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 requires the applicant not cease employment for more than 90 consecutive days.

7. The delegate’s decision records that the Department was informed in writing that the applicant ceased employment with Pillai & Sons International Pty Ltd on 1 November 2014.  Notwithstanding the statutory obligations in s.352(4) of the Act, the written notification that the applicant had ceased employment does not appear on the file provided to the Tribunal.  The Tribunal should not be forced to rely on the delegate’s characterisation of evidence which is otherwise required to be provided to it.

8. At the hearing, the applicant claimed to have continued working for Pillai & Sons International Pty Ltd until his visa was cancelled on 17 July 2015.  He provided documentary evidence in support of this, including:

   ·Invoices of Pillai & Sons International Pty Ltd from June and July 2015, which include the applicant’s contact details.

   ·Emails between the applicant and Mr Vik Pillai, in which Mr Pillai states that he will clarify the situation regarding the (then) proposed cancellation with the Department.

   ·Facebook messages between the applicant and Mr Pillai, following up on the email exchange.

   ·Letter from the applicant to Mr Pillai dated 24 September 2014, complaining about not being paid.

   ·Emails between the applicant’s parents and Mr Pillai in June 2014, asking Mr Pillai to pay the applicant.

   ·Letter signed by 10 former employees of Pillai & Sons International Pty Ltd, claiming non-payment of wages in 2015.  All 10 employees also claim to have worked with the applicant.

9. The Tribunal is satisfied on the basis of the evidence provided by the applicant that he continued to work for Pillai & Sons International Pty Ltd until the date of his visa cancellation.  The Tribunal is unable to place weight on the delegate’s claims that the Department was notified that the applicant ceased employment on 1 November 2014, as the relevant documentary evidence was not provided to the Tribunal as required by law.

10. The Tribunal notes that the conditions of the applicant’s bridging visa have not permitted him to engage in paid work since his Subclass 457 visa was cancelled.

11. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Glen Cranwell
    Member