1602229 (Migration)

[2016] AATA 4258

1602229 (Migration) [2016] AATA 4258 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bela Kristof Toth
Ms Kinga Tecsi

CASE NUMBER:  1602229

DIBP REFERENCE(S):  BCC2016/295862

MEMBER:Glen Cranwell

DATE:18 August 2016

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 18 August 2016 at 9:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 the applicant had not complied with 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 18 August 2016 to give evidence and present arguments.

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(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 relevantly required that the applicant not cease employment for 90 consecutive days.

8. The delegate’s decision recorded that the applicant’s employer, Netcom Services Group Pty Ltd, advised the Department that the applicant ceased employment on 21 September 2015.  Notwithstanding the Department’s statutory obligations in s.352(4), a copy of that advice was never provided to the Tribunal.  As it stands, the Tribunal is unable to confirm for itself whether that advice was in fact provided to the Department.

9. The applicant, on the other hand, provided a letter from Netcom Services Group Pty Ltd advising that he was employed until 21 February 2016, which is to say up until the time his visa was cancelled.  The applicant also provided payslips indicating that he continued to be paid between September 2015 and February 2016.

10. In these circumstances, the Tribunal is not satisfied that the applicant ceased employment with Netcom Services Group Pty Ltd prior to the cancellation of his visa.

11. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

13. The Tribunal has no jurisdiction with respect to the second named applicant.

    Glen Cranwell
    Member