1511497 (Migration)

[2016] AATA 3024

1511497 (Migration) [2016] AATA 3024 (12 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JOFFREY ERWAN DIVET

CASE NUMBER:  1511497

DIBP REFERENCE(S):  BCC2015/1802722

MEMBER:Denise Connolly

DATE:12 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2016 at 11:18am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 August 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 applicant was granted the Subclass 457 visa on 6 June 2014 valid until 6 June 2018. He was sponsored by Buzz Bar and Bistro Pty Ltd ATF The Buzz Trust (Buzz) to work in an occupation associated with an approved nomination.  Condition 8107 was attached to the visa. It requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

3. The Department was informed that the applicant had ceased employment with the sponsor, effective 13 March 2015. On 17 July 2015 the Department sent the applicant a notice of intention to consider cancellation (NOICC) on the basis that he was in breach of condition 8107. The applicant did not respond. On 17 August 2015 the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 90 days and had therefore breached condition 8107. 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 applicant was represented in relation to the review by his registered migration agent.

5. On 17 November 2015 the Tribunal sent to the applicant an invitation to give evidence and present arguments at a hearing to be held on 12 January 2016. The Tribunal advised that it was unable to make a favourable decision on the information before it. On 11 January 2016 the applicant’s representative wrote to the Tribunal to advise that the applicant had declined the hearing invitation and requested that the member make a decision. The Tribunal is satisfied the applicant is aware that in declining the hearing invitation the matter may be decided without any further action to allow or enable the applicant to provide further evidence. It has decided it is appropriate to now proceed to make its decision.

6. 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

1. 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?

1. 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 essentially requires the visa holder, among other things, to work in the occupation listed in the approved nomination unless certain circumstances apply (not relevant in this case), and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records, among other things, that condition 8107 is attached to the applicant’s Subclass 457 visa, granted on 6 June 2014 valid until 6 June 2018. It was granted on the basis of the approved nomination with Buzz.  On 1 April 2015 Buzz informed the Department that the applicant had ceased employment with the sponsor effective from 13 March 2015. On 17 July 2015 the Department sent to the applicant the NOICC providing him with an opportunity to comment but the applicant did not respond. There is no evidence to indicate that the applicant returned to that, or any other, employment. The Tribunal finds the applicant has ceased employment for a period of more than 90 days. He is therefore in breach of condition 8107(3)(b).

10. For these reasons, the Tribunal is satisfied that 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

11.    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’.

12.    The applicant has not provided any evidence to the Department or the Tribunal as to why his visa should not be cancelled. He did not respond to the NOICC and he chose not to attend his hearing with the Tribunal. Accordingly there are no submissions from the applicant in relation to the factors set out in PAM3 except for the material recorded on the Department’s file, contained in the delegate’s decision record.

13.    On the basis of the scant evidence before it, the Tribunal is unaware of the applicant’s current intentions. While he appears to have been in Australia to work for the sponsor as a Subclass 457 visa holder, he is no longer in that employment. There is no evidence to indicate that he is currently employed in a skilled occupation or that he has secured another sponsor and skilled employment. There is also no evidence before the Tribunal to explain the circumstances in which the ground for cancellation arose.

14.    On the evidence before the Tribunal this appears to be the only time a visa condition has been breached. There is no evidence to indicate the applicant has been uncooperative with the Department.

15.    The applicant has not indicated to the Department or the Tribunal that he, or anybody else, will suffer any hardship if the visa is cancelled. There does not appear to be any consequential cancellations. There is no evidence to suggest that the applicant fears returning to his home country, France, or that any international obligations would be breached as a result of a cancellation.

16.    Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa. The Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage. There is no evidence to suggest the applicant has arrangements in place to work in a skilled occupation. The Tribunal is not satisfied that there is any compelling need for the applicant to remain in Australia. It is not aware of the circumstances in which the ground for cancellation arose. It is satisfied that the applicant has had invitations to provide to the Department and the Tribunal any evidence to indicate the ground for cancellation arose in circumstances beyond his control. He has not taken advantage of these opportunities. While there is no evidence to suggest the applicant has breached other visa conditions or been uncooperative with the Department, he has not availed himself of the opportunity to give evidence as to why the visa should not be cancelled. The Tribunal is satisfied there are no other consequential cancellations to take into account. It is satisfied international obligations will not be breached as a consequence of a cancellation.  It is not satisfied the applicant, or anyone else, will suffer hardship because of a cancellation. The applicant has not provided evidence in relation to any other relevant matters.

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

DECISION

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

Denise Connolly
Member