1513563 (Migration)

[2016] AATA 3478

1513563 (Migration) [2016] AATA 3478 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian Graham Johnson

CASE NUMBER:  1513563

DIBP REFERENCE(S):  BCC2015/2083614

MEMBER:Don Lucas

DATE:11 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2016 at 6:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 September 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 on the basis that the applicant had 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.

3. The applicant appeared before the Tribunal on 11 February 2016 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 affirmed.

5. However, as the Tribunal has formed the view that the applicant’s circumstances appear to fall squarely within Ministerial guidelines concerning public interest intervention, the Tribunal will refer the matter to the Department with a recommendation to this effect.

   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 requires that if the holder of a subclass 457 visa ceases employment, the period during which employment has ceased must not exceed 90 consecutive days.

8. In the present case, the information before the Tribunal, which was not disputed by the applicant at the hearing, is that the standard business sponsor which nominated the applicant in the most recently approved nomination for the visa was Experian Australia Pty Ltd. The nomination was approved on 2 November 2012 in the occupation of ICT Sales Representative.

9. Subsequently, the Department received written notification from Experian Australia Pty Ltd that the applicant had ceased employment with the sponsor effective 6 June 2013.

10. The applicant conceded to the Department that there were grounds for cancellation but asked that his visa not be cancelled by reference to discretionary considerations. These are discussed further below.

11. The applicant concedes, and the Tribunal is satisfied, that a ground for cancellation exists under s.116(1)(b) in view of the cessation of the applicant’s employment from 6 June 2013 and the fact that the applicant has not been able to secure further employment with any other business sponsor in the intervening period, including within the 90 days following 6 June 2013.

12. As the ground established 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

13. 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’.

14. The Tribunal makes the following findings:

    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

15. The applicant initially entered Australia in September 2007 as the holder of a subclass 976 electronic travel authority visitor visa (ETA), departing in December 2007. The applicant re-entered Australia on February 2008 as the holder of a further ETA and shortly afterwards applied for his first subclass 457 which was granted in May 2008. This first subclass 457 visa was overtaken by the grant of a further 457 visa granted on 8 January 2009 which ceased on 2 April 2012, the date the applicant was granted his third and most recent subclass 457 visa which is now the subject of a cancellation decision.

16. The visa most recently granted to the applicant was granted on the basis of the applicant performing skilled work in a nominated position in the business of a standard business sponsor, Experian Australia Pty Ltd.

17. As noted above, the applicant’s employment with his last standard business sponsor ceased in June 2013. Neither in the 90 days following the cessation of this employment or at any point subsequently has the applicant secured employment or any firm offer of employment in the business of another standard business sponsor to perform in a position capable of nomination in the subclass 457 visa program. Although the applicant presently has permission to work and is presently employed, this is not in an occupation listed in the relevant Gazette for the subclass 457 visa program.

18. The Tribunal places significant weight on the purposes of the subclass 457 visa program, which is intended to allow Australian businesses having the status of standard business sponsor to nominate non-citizens to perform skilled work in a limited range of occupations allowable in this visa program. The applicant’s visa was granted on 2 April 2012 for a four year period ending on 2 April 2016. The Tribunal considers that any decision having the effect of reinstating the applicant’s subclass 457 visa in circumstances where he does not have a current nomination from an Australian business sponsor or any immediate prospects of securing one, would run contrary to the intentions of this visa program. Any decision to reinstate the subclass 457 visa would also have the effect of the applicant remaining in breach of condition 8107 and therefore liable to further cancellation action by the Department.

    The extent of compliance with visa conditions

19. At the time of the delegate’s decision, the applicant had ceased employment for over two years, and hence well in excess of the 90 day period specified in condition 8107.

20. Beyond the clear breach of condition 8107, there is no evidence of the applicant’s non-compliance with any other conditions attached to visa is he has held.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

21. There is no question that significant hardship will be caused in the event that visa cancellation ultimately results in the applicant’s departing Australia, by reference to the fact that the applicant is the biological parent of two Australian citizen children, being sons born in March 2009 and October 2011. The evidence is that the mother of the two children was the applicant’s de facto partner and an application had been proposed to be made under the partner visa category. However, prior to this occurring, the relationship broke down. The applicant has made reference to certain mental health issues affecting his former spouse. Although the Tribunal has no medical evidence concerning this, it is prepared to accept these issues may well have been present. In any event, it is not necessary for the Tribunal to make findings as to the reasons why the applicant’s relationship with his Australian citizen spouse ended. It is only relevant to the extent that the cessation of the relationship prevented the applicant from being able to make an application for residence in Australia under the partner visa program.

22. Whilst the Tribunal acknowledges the significant hardship of both an emotional and financial nature that may result in the visa cancellation for the applicant, the Tribunal does not consider that this matter alone outweighs other factors which militate in favour of the visa being cancelled. The Tribunal addresses issues concerning hardship and the effect on Australian citizen children under the discussion concerning public interest intervention below.

    Circumstances in which ground of cancellation arose.

    The Tribunal accepts that the applicant’s employment with his previous business sponsor ceased due to circumstances which were not within his control. The Tribunal further accepts that the applicant had proactively sought to secure further employment within the 90 day period following his employment ceasing in June 2013 without success, and that the associated processes required due to his visa status have presented an additional hurdle to the applicant in securing further employment.

    Past and present conduct of the visa holder towards the department and any other relevant matters

23. Like the delegate, the Tribunal finds that the applicant has been cooperative in his dealings with Australian authorities in relation to his visa affairs.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

24. The effect of cancellation in the applicant’s case has no immediate mandatory consequences in relation to the applicant’s lawful status or liability for immigration detention. As discussed with the applicant at hearing, it will be open for the applicant to seek public interest intervention and obtain a further bridging visa associated with that while that matter is being considered.

25. The applicant is subject to section 48 of the Act which, with limited exceptions, prevents further applications for a visa inside Australia. However, even if the applicant were not subject to such restrictions, there appear to be no clear options for the applicant to apply for a visa in Australia for which he may be eligible.

    Whether there would be consequential cancellations under s.140

26. No consequential cancellations arise in this matter.

    Whether any international obligations would be breached as a result of the cancellation

27. The applicant has made submissions advocating for a recommendation concerning public interest intervention. The arguments address the international Convention on the Rights of the Child (CROC), in view of the applicant’s circumstances as the father of two Australian citizen children, with responsibilities for child-support payment and with a mutually agreed parenting plan, vesting general responsibility on the children’s mother concerning the boys’ residence but providing for regular overnight stays with the applicant as father.

28. The Tribunal has considered these submissions but is not persuaded that any international obligations including under the CROC would be breached by a decision that the applicant’s subclass 457 visa remain cancelled. Although impractical from a financial point of view and involving substantial processing times, it would be open for the applicant to explore options through the parent visa program to return to Australia to be reunited with his young children. In addition, whilst the Tribunal has formed the view that the correct and preferable decision is that the applicant’s subclass 457 visa be cancelled, the applicant will be entitled to seek public interest intervention on the basis of his active paternity of two Australian citizen children.

29. Considering the circumstances as a whole, the Tribunal concludes that the subclass 457 visa held by the applicant should be cancelled.

    Ministerial Intervention

30. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

31. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.   Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department by a review Tribunal or which exhibit certain unique or exceptional circumstances. Relevantly to the present case, these guidelines may include:

    ·Circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration. Under CROC, the best interests of a child will be considered as a primary consideration.

    ·Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicant leave the country

    ·Exceptional economic, scientific, cultural or other benefit to Australia

    ·Length of time present in Australia and level of integration into the Australian community

    ·Circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results

32. Having regard to the applicant’s claims and evidence, the Tribunal accepts that the applicant is the father of two young Australian citizen children with whom he has regular contact including periodic residence. The Tribunal accepts that it will manifestly be in the best interests of these two boys to be brought up in Australia with regular access to their father. The Tribunal considers this to be so notwithstanding any technical right these two boys may have to residence or citizenship in the United Kingdom. Such a circumstance would only in any event be open either with the consent of the mother or a court order to this effect, neither prospect of which appears particularly likely or reasonable.

33. The Tribunal considers that the applicant is somewhat the victim of timing. Having arrived in Australia in 2007 and having commenced a relationship with an Australian citizen de facto partner and having two children born in 2009 and 2011, the applicant’s circumstances may well have permitted him to remain in Australia on conventional bases under the Partner Visa program. However, although a partner visa application had been discussed between the applicant and the mother of his two children, no such application was lodged prior to the relationship breaking down. Had such an application been made, it may have been open for the applicant to obtain provisional/permanent residence in the Partner Visa stream, on the basis that whilst the relationship had broken down, he remained the parent of Australian citizen children concerning whom he has the requisite degree of contact. Presently however, since the relationship has already broken down, the applicant would no longer be able to meet relevant application time criteria for the grant of the subclass 820 provisional spouse visa. He would therefore be unable to access the provisions providing an exemption from the requirement that the relationship be ongoing, in circumstances which include parenthood of Australian citizen children coupled with the requisite evidence of ongoing parent-child contact.

34. Although the Minister’s public interest powers are non-compellable, the Tribunal considers that the grant of a visa such as the subclass 820 visa could form a vehicle to ensure that the applicant as the father of two Australian citizen sons could remain in Australia and continue to provide the same level of parental support he apparently does now. Any alternative such as a potential to return to Australia under the Parent Visa category subclass 103 would on current processing periods almost certainly ensure that no visa would be granted to the applicant in this offshore category until well after both children born in 2009 and 2011 respectively had reached adulthood, resulting in them being deprived of regular contact with one of their two biological parents throughout the rest of their formative years. The Tribunal accepts the applicant’s evidence that any application in the Contributory Parent category, involving a more expedited processing period, would be beyond his financial means.

35. On the basis of the foregoing, the Tribunal accepts that the applicant’s circumstances appear capable of meeting the above criteria for referral to the Minister. As such, the Tribunal considers that the applicant’s situation may involve exceptional circumstances and the Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether to exercise his s. 351 discretionary intervention powers in this case.

    DECISION

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

    Don Lucas
    Member