1600564 (Migration)

[2016] AATA 4219

1600564 (Migration) [2016] AATA 4219 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alistair Stringer

CASE NUMBER:  1600564

DIBP REFERENCE(S):  BCC2015/3317889

MEMBER:Rania Skaros

DATE:8 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 08 August 2016 at 11:09am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 January 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance for the visa grant no longer exists. 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 5 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Greg Matthew, the applicant’s business partner.

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 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(). 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)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, ie satisfaction (per French and North JJ at [54]).

7. In this case the applicant was granted the 457 visa on the basis of being a member of family unit of Ms Emer Maloney, the primary visa holder. The applicant advised the Department that he and Ms Moloney have separated. The applicant confirmed at the hearing that he and Ms Moloney were no longer in a relationship with each other. On the evidence, the Tribunal finds that the applicant is no longer a member of the family unit of the primary visa holder.

8. As the applicant’s 457 visa was granted partly on the basis of his relationship with Ms Maloney and as he is no longer a member of Ms Maloney’s family unit, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

9. 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’.

10. The Tribunal has first considered the purpose of the visa holder’s travel and stay in Australia and whether he has a compelling need to remain in Australia. The applicant travelled to Australia in 2010 on a working holiday visa. He applied to study in Australia and completed a Certificate IV course. He was then granted a Subclass 457 visa on the basis of his relationship with Ms Maloney. The applicant’s relationship with Ms Maloney broke down and this triggered the ground for cancelling the visa.

11. The applicant claims that he has a compelling need to remain in Australia, including that he has resided in Australia since 2010, has established a strong network of friends and business associates, and has invested in a start-up technology business which has the potential to benefit Australia as a leader in wireless headset technology.

12. The Tribunal has had regard to the evidence provided in respect of the tech start-up and the technology he has invested in and developed as part of that business. The applicant’s claims, which were supported by Mr Matthew’s oral evidence, is that the technology, which has so far been trialled in education and training, including at primary schools, fitness and events, and created in Australia, has the potential to reach world markets and benefit Australia. Mr Matthew gave evidence that the applicant had been vital in establishing the business over the last two years and that if he had to depart Australia now the projects would be on hold and may even discontinue due to the intellectual property, skills and relationships which have essentially been developed by the applicant.

13. The Tribunal has considered the above, and is prepared to accept the evidence that the business, and the associated technology, would suffer if the applicant had to depart Australia now. The oral evidence in relation to the status of the projects, the contribution it would make to the tech-start-up industry in Australia and the potential for the technology to be used internationally was fairly persuasive, and the Tribunal gives this factor weight in its considerations.

14. The Tribunal has also considered the evidence indicating that a nomination by Silent Sydney Pty Ltd, an approved standard business sponsor, in respect of the applicant for the occupation of Marketing Specialist, has been approved by the Department and gives weight to the fact that the applicant has now secured a nomination under the Subclass 457 visa program and may be able to meet the criteria for the grant of the Subclass 457 visa in his own right.

15. The Tribunal has also considered the consequence of the cancellation and notes that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and would not be able to apply for a 457 visa onshore. The evidence before the Tribunal also indicates that the applicant has had a number of bridging E visas. In the circumstances, if the applicant has to depart Australia to lodge the 457 he may be affected by a risk factor in PIC 4014 which may see him excluded from returning to Australia for a period of three years. The Tribunal gives some weight to the consequences of the cancellation in its considerations, particularly in light of the fact that the applicant is now the subject of a current approved nomination and would be able to fulfil the purpose of a 457 visa, which is to work for an approved Australia business, as a primary visa holder.

16. The applicant claims to have complied with the of his visa conditions, including ceasing work upon cancellation of his 457 visa by the Department. Also, there is nothing before the Tribunal to suggest that the applicant has not been cooperative in his dealings with the Department.

17. The Tribunal has also considered the hardship that may be caused if the visa is cancelled, which the applicant claims would include, emotional and financial given the significant time and effort spent on establishing and developing the technology and building relationships on behalf of Silent Sydney Pty Ltd, the sponsoring employer, who have experienced significant growth because of his skills. 

18. The Tribunal has also considered the circumstances in which ground of cancellation arose, which in this case was due to a relationship breakdown. The applicant has indicated that the breakdown of the relationship was amicable, and while there is nothing to suggest that the relationship has broken down as a result of family violence, the Tribunal acknowledges the applicant’s evidence that the separation was not a matter that was entirely within the applicant’s control.

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

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Rania Skaros
    Member