1600844 (Migration)

[2016] AATA 3993

1600844 (Migration) [2016] AATA 3993 (14 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mario Rui Isidoro Vicente

CASE NUMBER:  1600844

DIBP REFERENCE(S):  BCC2015/2140888

MEMBER:Michael Cooke

DATE:14 June 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 14 June 2016 at 3:44pm

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)(b on the basis that the grant of the visa no longer existed. 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 14 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife – Ms Sharnie Patterson. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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(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?

   s.116(1)(b) – the holder has not complied with a condition of the visa

   6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder has not complied with a condition of the visa

   7. Initially the applicant’s employer was disbarred as a sponsor for 12 months under section 140M. This meant that the Department sent the applicant a Notice of Cancellation under s.116(b) of the Regulations on the basis that he had ceased employment with his sponsor. The applicant confirmed this to the delegate when telephoned. He informed that his employer had told him he had finished his contracts at that stage and would employ him again when he got some new contracts.

   8. The Tribunal finds that the applicant has acknowledged that the identified circumstances which were a basis for the grant of the visa has ceased. Therefore, the ground for cancellation in s.116(1)(b) exists.

   Consideration of discretion 

   9. For these reasons, the Tribunal is satisfied 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.

   10.       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’.

   •          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

   11.       The applicant came to work in Australia and has done so in the telecommunications Industry. He informs that he is soon to be a father to an Australian spouse and he was granted a Partner visa Subclass 820 on 11 May 2016.The applicant has a compelling need to remain in Australia which is to further his career, care for his family and seek permanent residency. He has made a Partner visa application in May 2016 and has being financially supported by his partner as he is unable to work.

   •          the extent of compliance with visa conditions

   12.       There is no adverse information.

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

   13.       The Tribunal has had the benefit of speaking to the applicant in the hearing and to his partner - who is pregnant. The Tribunal finds that the applicant has suffered financial, psychological and emotional hardship that is essentially beyond his control as it emanated from the behaviour of his former employer who did not pay the appropriate taxes. As a result the sponsor was barred for 12 months as a sponsor. The applicant informs that he was unaware of this - until informed by the Department. He had been waiting in Darwin for the former sponsor to provide tax affairs paperwork for finalization of his permanent residency application which had been requested by the Department. The former sponsored dilly dallied around whilst the applicant awaited the requested information. When the sponsor finally arrived on a family visit to Darwin the applicant confronted him. The applicant was told the true state of affairs with the ATO and the sponsor’s failure to pay PAYG tax instalments and why he lost his job. By then the 90 days had lapsed and the applicant was subject to cancellation. At the same time he began a married relationship that has resulted in his spouse becoming pregnant and the parties inform they have made a Partner visa application.

   •          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

   14.       The cancellation was caused by the activities of the applicant’s former sponsor (see above) which were beyond the visa holder’s control.

   •          past and present conduct of the visa holder towards the Department

   15.       There is no adverse information. The applicant has been co-operative.

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

   16.       There is no adverse information or evidence of breach.

   •          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

   17.       The applicant presently holds a Bridging E visa. There are no provisions in the Act which would prevent the person from making a valid visa application without the Minister’s intervention. The applicant has applied for a Partner visa.

   •          whether there would be consequential cancellations under s.140

   18.       There would be no consequential cancellations.

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

   19.       There are no international obligations would be breached as a result of the cancellation

   •          any other relevant matters.

   20.      None.

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

   DECISION

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

   Michael Cooke
   Member