1512179 (Migration)

[2016] AATA 3822

1512179 (Migration) [2016] AATA 3822 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jasveer Kaur Sidhu
Mr Yashvrinder Singh Sidhu
Miss Gracy Sidhu

CASE NUMBER:  1512179

DIBP REFERENCE(S):  BCC2015/963611

MEMBER:Adrian Ho

DATE:3 May 2016

PLACE OF DECISION:  Melbourne

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 03 May 2016 at 3:14pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 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(b) on the basis that the applicant had ceased the employment for which the Subclass 457 visa was granted for more than 90 days in breach of paragraph 8107(3)(b) of Condition 8107.

3. 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. 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.

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

6. 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

7. 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?

8. 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 applies specifically to the holders or former holders of Subclass 457 work visas. It requires, among other things, that if the applicant ceases employment – the period during which the applicant ceases employment does not exceed 90 consecutive days.

9. In the copy the copy of the delegate’s decision the applicant provided to the tribunal it is noted that the applicant ceased employment with her sponsoring employer in October 2014 and for well more than 90 days by the time her visa was cancelled in August 2015.

10. Based on this evidence, the Tribunal is satisfied that the applicant has breached condition 8107 and 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 tribunal finds:

    a.That the delegate’s decision does not reveal any attempt to mislead or deceive the government by the applicant, or to obtain or continue to hold the visa by inappropriate means;

    b.On the evidence, the applicant ceased employment because the position as approved was no longer available to her;

    c.The only purpose of the applicant’s stay in Australia on a Subclass 457 visa is to work for an approved sponsor in a position that has been nominated and approved;

    d.The applicant has provided the tribunal with a copy of a Department notification letter confirming approval of a relevant nomination for the applicant dated 30 April 2016 and the tribunal has confirmed that approval in the Department’s electronic systems;

    e.With the approval of the nomination for the applicant, the applicant is in a position to comply with all 457 visa conditions by working in the position now approved and continues to have a basis, the only permitted basis, for holding the 457 visa.

13. In these circumstances, there being no evidence that any other ground for cancellation is extant, the preferable decision is that the visa not be cancelled.

14. The visas of the secondary applicants were cancelled under s.140 by operation of law.  As no decision was made to cancel those visas, there is no reviewable decision for the tribunal to review, and the Tribunal has no jurisdiction with respect to the secondary applicants.

    DECISION

15. 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.

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

    Adrian Ho
    Member