1600804 (Migration)

[2016] AATA 3553

1600804 (Migration) [2016] AATA 3553 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robin Verma

CASE NUMBER:  1600804

DIBP REFERENCE(S):  BCC2015/2010244

MEMBER:Fraser Syme

DATE:18 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2016 at 10:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 2016 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)(g) on the basis prescribed ground r.2.43(1)(l(iv). The delegate’s decision records the applicant was last granted a subclass 457 visa on 9 October 2012 and the department cancelled the business sponsorship status of his former employer on 15 July 2015 under s.140M(1)(a). The delegate sent the applicant a notice of intention to consider cancelation on 8 January 2016 and the applicant replied through his migration agent on 11 January 2016, wherein he provided evidence of his applying for a subclass 187 visa on 29 September 2015. The delegate found at the time of the delegate’s decision, no new nomination was in place for the applicant, although the applicant had a pending application for a subclass 187 visa. The delegate found more than 6 months had passed where the applicant was not the subject of an approved nomination and the applicant would not suffer hardship as he could remain in Australia as the holder of a bridging visa E, pending the outcome of his subclass 187 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant included the delegate’s decision with the review application.

3. The applicant appeared before the Tribunal on 16 March 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The migration agent did not attend the hearing. He did provide two bundles of documents prior to the hearing, which largely were before the delegate, including bank and taxation records of the applicant, as well as evidence of the applicant’s former employer being placed into administration. The applicant provided a statutory declaration regarding the cancelation of his former subclass 457 visa and indicating he applied for a new visa within a ‘time limit’ of three months. After the hearing, the migration agent provided evidence of the applicant’s current employer filing an application to nominate the applicant for a subclass 457 visa.

5. 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

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(g). 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)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant.

8. As set out above, the information before the Tribunal is that the department cancelled the standard sponsorship status of the applicant’s former employer on 15 July 2015 under s.140M. At the hearing, the applicant agreed the sponsorship status of his former employer was cancelled when the business was closed down.

9. On the basis of that evidence, the Tribunal finds the standard business sponsorship of the applicant’s former employer was cancelled under s.140M.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) and r.2.43(1)(l)(iv) 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 considers the circumstances relevant in the case of the applicant are:

    ·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

13. The purpose of the subclass 457 visa is to permit applicant to work in an approved nominated position for an approved standard business sponsor. The Tribunal considers that the applicant has not worked with an approved standard business sponsor under an approved nomination since July 2015 weighs in favour of cancelation of his visa.

14. In the pre-hearing submissions, the applicant raised his need to work to support his family a compelling reason to remain in Australia. The Tribunal has reservations that his need to work is compelling. The Tribunal discusses his reasons for needing to work in more detail below relevant to the degree of hardship.

    ·the extent of compliance with visa conditions

15. The applicant has remained not employed under an approved nomination from July 2015 until the cancellation of his subclass 457 visa on 20 January 2016.  This is a breach of condition 8107(3)(b) of his former visa, which requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal considers this weighs in favour of cancelation of his visa.

16. There are ameliorating reasons for the length applicant’s breach, in particular, he has been awaiting the outcome of the subclass 187 visa application under the nomination of his current employer lodged on 29 September 2015. The applicant seeks to emphasis he made that visa application within the 90 day ‘time limit’ The Tribunal returns to this below. He told the Tribunal the department had not yet made a decision on that application. The Tribunal notes too the current employer on 17 March 2016 applied to the department to nominate as a standard business sponsor. That is to say, the current employer has two pending applications before the department in relation to the applicant. In essence, one to nominate the applicant for a subclass 187 visa and another to nominate him for a subclass 457 visa.

17. There is no other information before the Tribunal which suggests the applicant has not complied with any of the other conditions of his former visa.

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

18. In the pre-submission, the applicant stated he needed to be able to work in Australia for the benefit of his family.  The Tribunal accepts it will be of economic detriment to the applicant if the Tribunal affirms the decision. The Tribunal does not consider that detriment amounts to a level of hardship such that it would weigh in favour of not cancelling his visa.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

19. Much of the prehearing submissions, supporting evidence and discussion at the hearing related to this consideration. In particular, that the applicant had the pending application for a subclass 187 visa which was made within the 90 day ‘time limit’. The Tribunal infers reference to the 90 day time limit is a misstatement of the requirements of condition 8107. It is not the case the applicant had 90 days within which to apply for another visa. Rather condition 8107 required the applicant cannot be unemployed for more than 90 consecutive days. Employed here refers to employment under an approved nomination made by a standard business sponsor.

20. The Tribunal found the applicant to be a credible witness. His evidence was spontaneous and consistent with the evidence in the documents before the Tribunal. The Tribunal accepts the grounds for cancellation arose for reasons outside of the control of the applicant, namely, the cancellation of the standard business sponsorship of his former employer. The Tribunal notes under the department policy generally, his visa therefore should not be cancelled.

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

21. The information before the Tribunal does not otherwise indicate any past or present conduct of the applicant which would weigh in favour of cancelling the applicant’s visa.

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

22. The applicant’s wife would have her visa consequentially cancelled under s.140. There is no suggestion the applicant’s wife has failed to comply with any condition of her visas. The Tribunal considers this weighs in favour of not cancelation of his visa

    ·any other relevant matters.

23. The applicant raised the issue of his current employer’s nomination of him for a subclass 187 visa. At the time of the Tribunal’s decision the nomination applications of the current remains undecided. The Tribunal considers it reasonable to make a decision without awaiting the outcome of either of the nominations. The Tribunal considers this weighs in favour of not cancelation of his visa.

24. Balancing all of these factors, the Tribunal places significant weight on the circumstances under which the ground for cancellation arose was for reasons beyond the applicant’s control as well as the pending nomination applications of his current employer. The other considerations listed above in favour of cancelling the applicant’s visa do not outweigh these reasons for not cancelling his visa. 

25. Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes the preferable decision in this case is that the applicant’s visa should not be cancelled.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Fraser Syme
    Member