1601494 (Migration) [2016] AATA 3644 (4 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Liam Stuart Wootten
CASE NUMBER: 1601494
DIBP REFERENCE(S): BCC2015/4023695
MEMBER:Denise Connolly
DATE:4 April 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 (Temporary Work (Skilled)) visa.
Statement made on 04 April 2016 at 4:22pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 8 February 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).
The applicant was granted the Subclass 457 visa on 2 September 2013 on the basis that he was a member of the family unit of Ms Jade Fitzgerald, his former partner. The Department was advised that their relationship had ended and wrote to the applicant seeking his comments. He confirmed that the relationship had ended and indicated he wished to lodge his own visa application. He asked that his visa not be cancelled so that his migration history was unaffected. He indicated he was employed by Ergo Group Pty Ltd, an approved standard business sponsor, as a qualified electrician. He provided evidence that Ergo had lodged a nomination application of which he is the subject. He indicated that he intended to lodge a Subclass 457 visa application. The delegate considered this information and decided to cancel the visa under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer existed. The issue for the Tribunal to consider is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 April 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
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
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)(a). 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?
A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).
The applicant has acknowledged that he was granted the Subclass 457 visa on the basis that he was a member of the family unit of Ms Jade Fitzgerald, his former partner. At the hearing he confirmed that the relationship has ended and he is no longer a member of Ms Fitzgerald’s family unit.
For these reasons, 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
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 applicant has provided to the Department evidence that he is sponsored by Ergo Group Pty Ltd and that Ergo made a nomination application on 3 February 2016, nominating the applicant.
The applicant has provided to the Tribunal evidence that the Department has approved Ergo’s nomination application on 19 February 2016, nominating the applicant to be employed in the occupation Electrician. The Tribunal is of the view this is a significant factor.
The applicant came to Australia in January 2013 as the holder of a Subclass 417 visa. He travelled here with his former partner, Ms Fitzgerald. They applied for Subclass 457 visas on the basis of Ms Fitzgerald’s employment as a nurse. Those visas were granted in September 2013. The applicant’s visa was granted on the basis that he was a member of Ms Fitzgerald’s family unit however he was working in the construction industry as an electrician. He explained to the Tribunal that the relationship started breaking down in about October 2015, and it finally ended in January 2016. There was no family violence; the relationship had just run its course. The applicant now wishes to stay in Australia to work for Ergo, his sponsor, as a qualified electrician. He commenced working for Ergo in about October 2015. Ergo has been paying him the salary referred to in the nomination.
The applicant has not had any other difficulties in relation to his compliance with visa conditions. There is no suggestion that there has been any difficulty in relation to his past and present conduct. He has been cooperative with the Department and the Tribunal.
The applicant has stated that he will suffer financial hardship if the visa is cancelled. He has made a commitment to work for Ergo. He will have to secure suitable employment if the visa is cancelled. He currently has financial commitments in Australia as he rents a property and he leases a car. There would be some emotional hardship because he has now started another relationship with an Australian citizen.
There are no other persons in Australia whose visas would be cancelled under section 140. The applicant holds a Canadian passport. There is no evidence before the Tribunal to indicate that international obligations would be breached as a result of cancelling the applicant’s visa.
The Tribunal has considered the evidence overall and it is satisfied that, by virtue of his employment with Ergo in a skilled occupation, the applicant is currently meeting a demand for a qualified electrician, which is the purpose of the Subclass 457 visa program. This is the main reason he wishes to remain in Australia. The Tribunal notes that Ergo’s application for approval of the nomination was successful. The applicant is the subject of that nomination. The Tribunal is of the view these are significant factors in its consideration of whether to exercise its discretion to cancel the visa. Also the applicant has not had any other difficulties with the Department. There is no evidence he has not complied with other visa conditions. The ground for cancellation arose only because his relationship with Ms Fitzgerald broke down. There was no family violence. He has some financial commitments here and the Tribunal accepts he may suffer some financial hardship if the visa is cancelled. Overall the Tribunal is of the view in this case that it is appropriate for the applicant, a qualified electrician, to remain in Australia as the holder of the Subclass 457 visa in order to fill a skills shortage.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
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.
Denise Connolly
Member
- AGLC
- 1601494 (Migration) [2016] AATA 3644
- Case
- [2016] AATA 3644
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(a) was satisfied, given that the applicant was no longer part of the family unit that had initially justified the visa grant. The Tribunal referenced the Full Federal Court's interpretation in MIMA v Zhang, which clarified that section 116(1)(a) pertains to a material change in circumstances, not the Minister's state of mind. The Tribunal found that the applicant's relationship had genuinely ended, and thus the ground for cancellation existed. However, as section 116(3) does not mandate cancellation when this ground is met, the Tribunal proceeded to consider the exercise of the discretion to cancel.
In exercising its discretion, the Tribunal considered several factors, including the applicant's sponsorship by Ergo Group Pty Ltd, the approval of the nomination application by the Department, and the applicant's continuous employment with Ergo since October 2015. The Tribunal also took into account the applicant's cooperative conduct, his financial and emotional ties to Australia, and the absence of any other persons whose visas would be affected by the decision. Ultimately, the Tribunal determined that the visa should not be cancelled given the significant weight of the applicant's sponsorship and employment situation.
The Tribunal set aside the Minister's decision to cancel the visa and substituted its own decision not to cancel the applicant's Subclass 457 visa. This decision was based on the comprehensive consideration of the relevant circumstances and the Tribunal's assessment that cancelling the visa would not be in the public interest given the applicant's current employment and sponsorship.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons, 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 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 applicant has provided to the Department evidence that he is sponsored by Ergo Group Pty Ltd and that Ergo made a nomination application on 3 February 2016, nominating the applicant. The applicant has provided to the Tribunal evidence that the Department has approved Ergo’s nomination application on 19 February 2016, nominating the applicant to be employed in the occupation Electrician. The Tribunal is of the view this is a significant factor. The applicant came to Australia in January 2013 as the holder of a Subclass 417 visa. He travelled here with his former partner, Ms Fitzgerald. They applied for Subclass 457 visas on the basis of Ms Fitzgerald’s employment as a nurse. Those visas were granted in September 2013. The applicant’s visa was granted on the basis that he was a member of Ms Fitzgerald’s family unit however he was working in the construction industry as an electrician. He explained to the Tribunal that the relationship started breaking down in about October 2015, and it finally ended in January 2016. There was no family violence; the relationship had just run its course. The applicant now wishes to stay in Australia to work for Ergo, his sponsor, as a qualified electrician. He commenced working for Ergo in about October 2015. Ergo has been paying him the salary referred to in the nomination. The applicant has not had any other difficulties in relation to his compliance with visa conditions. There is no suggestion that there has been any difficulty in relation to his past and present conduct. He has been cooperative with the Department and the Tribunal. The applicant has stated that he will suffer financial hardship if the visa is cancelled. He has made a commitment to work for Ergo. He will have to secure suitable employment if the visa is cancelled. He currently has financial commitments in Australia as he rents a property and he leases a car. There would be some emotional hardship because he has now started another relationship with an Australian citizen. There are no other persons in Australia whose visas would be cancelled under section 140. The applicant holds a Canadian passport. There is no evidence before the Tribunal to indicate that international obligations would be breached as a result of cancelling the applicant’s visa.