1511840 (Migration)

[2016] AATA 3055

1511840 (Migration) [2016] AATA 3055 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jeroen Maria Beekman
Ms WILHELMINA ANTONIA JOSEPHA MARIA VERLEG

CASE NUMBER:  1511840

DIBP REFERENCE(S):  BCC2015/1804731

MEMBER:Bruce Henry

DATE:13 January 2016

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 second named applicant.

Statement made on 13 January 2016 at 5:25pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 August 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 was no longer employed by the company that had sponsored him for his subclass 457 visa and thus had not complied with the condition of his visa that he continue to be employed by the sponsor. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

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 the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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(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?

7. 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 states, so far as is relevant:

(3)   If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

(a)      the holder:

(i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

(ii)      unless the circumstances in subclause (3A) apply: …

(B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; … and

(aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

(b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

Background

1. Information on the departmental file states that the applicant is a Dutch citizen born 6 September 1948 who was granted a subclass 457 visa in Australia on 3 September 2010. That visa authorised him to live and work in Australia until 3 September 2013. He was granted a further subclass 457 visa on 5 September 2013 to enable him to continue working for the same sponsor. After turning 65 he applied for a subclass 804 aged parent visa. He was advised that his application had been placed in a queue for that visa on 7 July 2015.

2. It appears from the departmental file that the representative contacted the Department on a number of occasions, by telephone and email, to advise that the applicant wished to retire from the workforce and await the outcome of his parent visa application. On 7 November 2014, for example, the representative wrote saying:

   Are you able to clarify the procedure please for Mr Beekman who is at present on a valid 457 visa and has an aged parent visa validly lodged in September. He turned 65 September this year and will be retiring from work as of 1 January 2015, initially working 2-3 days per week while a new person is trained in his role. Obviously he also has an Aged Parent Visa lodged and is in the queue waiting patiently. We were advised prior to application that once he wished to retire, we should notify Immi and take further instructions as obviously he is not expected to continue to work for his employer until the Parent visa is granted in 15-30 years time and with an aged parent it is expected they will retire.

   Can you please advise what is to happen procedurally for Mr Beekman and the eventual cessation of his employment. Mr Beekman is at present working full time and in accordance with his 457 commitment and obligations but wishes to know well in advance what the company and personal procedures are for the future retirement.

3. The file contains an email dated 7 February 2015 from the Department, apparently in response to this and subsequent emails from the representative, advising:

   Mr Beekman's sponsor should advise the department when he ceases employment. 90 days after the cessation of his employment, Mr Beekman’s 457 visa will be subject to cancellation, If he receives a Notice of Intention to Consider Cancellation from the department after the 90 days, he should advise the case officer the outstanding Aged Parent Visa application so the cancellations officer can take it into consideration in their decision.

4. The decision record of the delegate in this matter, a copy of which was provided to the Tribunal by the applicant, states that the Department received written notification from his sponsor that the applicant ceased employment with the sponsor on 30 January 2015. On the basis of this advice, the Department issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant dated 27 July 2015. His representative responded stating (errors in original):

   Many emails were sent to the Department along with countless phone calls to discuss how an aged parent wishing to retire could cease work when transitioning from the 457 to the Aged Parent Visa. I spoke at length with Immi before lodging and was advised to wait until he turned 65 in fact so that the Aged Parent visa could be lodged onshore and the associated BVA would take effect. Thorough enquiry and research was completed in advance for this application.

   As Mr Beekman was permitted to lodge an Aged Parent onshore from his 457 and advised that this was a feasible transitioning application, we followed on with the application. As you will see from the many emails, i still sought advice before Mr Beekman ceased to work but could not be given precise advice. I was advised to wait for the Dept to contact us and it was likely the BVA would simply, continue on as Mr Beekman was retired at age 65 and therefore could not keep working.

   We respectfully request that the Beekman's bva's remain intact and that he be found to not have his visa cancelled.

   We have even received the Parent Queue letter after completing medicals. At no time during this process was anything else queried.

   As required by law, we are required to be given reasonable time to respond to this possible decision. This has not been possible as the notice did not come to my email or correct address in time.

   It is our perception that the visa should not be cancelled as every effort has been made with Immi prior to lodgement and post lodgement to seek procedural advice on the correct steps to take. The vague responses and transferring from different units, we have tried everything to get solid sequential advice. At no time did we ever get the same advice twice.

   The Beekman's have lawfully lodged an Aged Parent visa in the valid legislative way and are now in the Parent queue.

   The Beekman's daughter all now reside in Australia and they complied with all 457 conditions on previous visas also. The amount of hardship that would occur to this couple if they were forced to leave Australia would be substantial as one daughter lives with them in their home and they have no children left back in the Netherlands.

5. The delegate found, on the basis of advice from the applicant’s sponsor, that the applicant had ceased work effective 30 January 2015 and had not been employed by the sponsor for a period in excess of 90 days at the date of the decision. She accordingly concluded that the applicant was in breach of condition 8107(3)(b), which gave rise to a ground for cancellation of the visa.

6. The applicant does not dispute that he has not worked for the sponsor since 30 January 2015. Accordingly, the Tribunal is satisfied that he has not complied with cl.8107(3)(b), and finds that the ground for cancellation in s.116(1)(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

7. 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 exercising the discretion, the Tribunal may have regard to matters of policy which are referred to in the Department’s Procedures Advice Manual (PAM3). The departmental guidelines refer, in the section entitled General visa cancellation powers, so far as is relevant to this case, to the following considerations:

   ·   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;

   ·   past and present conduct of the visa holder towards the department;

   ·   whether there would be consequential cancellations under s.140; and

   ·   any other relevant matters.

8. In relation to these matters, the Tribunal notes that the Department accepted that there was no evidence that the applicant’s purpose in travelling to Australia was not as stated in his application, that he had been uncooperative with the Department, and that his wife’s visa would be cancelled as a consequence of the cancellation of his visa. The delegate also noted that if the visa was cancelled, the applicant would immediately become unlawful, and would no longer be eligible for the bridging visa A which he held, as did his wife, as a consequence of their applications for parent visas, and would be eligible only for a bridging visa E, which the delegate described as ‘a far less advantageous class of BV’.

9. Each of these matters was noted by the delegate in the decision record, and then described as ‘not [forming] enough of a reason to make a decision not to cancel’ the visa.

10. On the basis of the evidence on the departmental file, the Tribunal sees no reason to differ from the conclusions of the delegate as to each of the considerations identified as relevant in the policy, and considers that it is appropriate to consider these matters cumulatively rather than to dismiss each of them as insufficient of themselves to warrant a decision not to cancel the visa.

11. Given the contents of the correspondence on the departmental file, the Tribunal considers that it is clear that the applicant has at all times endeavoured to ensure that he was in compliance with his visa conditions and repeatedly sought advice from the Department as to the appropriate course for him to take to ensure that he did so. In these circumstances, and taking into account also the age of the applicant and the stress that would be caused to him by the cancellation of his visa and the consequences that flow from that decision, the Tribunal considers that he could well suffer financial, psychological or emotional hardship as a result of the cancellation.

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

13. Having reached this conclusion, the Tribunal notes that the situation in which the applicant found himself could have been avoided if the subclass 457 visa that was subsequently cancelled had been valid only for as long as the applicant intended to work. It is not apparent from the files, however, whether this option was canvassed by the representative or by the Department at the time, although it would clearly have been within the power of the Department to grant the visa for that shorter period.

    DECISION

14. 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.

    Bruce Henry

    
    

    Member