1602723 (Migration)

[2016] AATA 4075

1602723 (Migration) [2016] AATA 4075 (7 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jean-Eudes Henry Amirault

CASE NUMBER:  1602723

DIBP REFERENCE(S):  BCC2015/2702582

MEMBER:Denise Connolly

DATE:7 July 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 07 July 2016 at 9:28am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 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).

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted the Subclass 457 visa on 24 April 2014, valid until 24 April 2018. He was sponsored by Eva Collections Pty Ltd to work in the nominated occupation of Marketing Specialist.  Condition 8107 was attached to the visa. It requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Department was informed that the applicant had ceased employment with the sponsor, effective 17 April 2015. The Department’s records show that a nomination application was made on 8 August 2015 nominating the applicant to be employed by his new sponsor GJ Food & Services Pty Ltd. That application was refused on 28 October 2015.

3. The delegate’s decision record states that on 10 February 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC) on the basis that he was in breach of condition 8107. The applicant responded indicating another nomination application was being lodged. The delegate noted another application was made by GJ Food & Services on 12 February 2016. The delegate took these submissions into account but noted that the applicant was not the subject of another approved nomination. On 25 February 2016 the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 90 days and therefore breached condition 8107.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments.

6. 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

7. 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?

8. 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 essentially requires the visa holder, among other things, to work in the occupation listed in the approved nomination unless certain circumstances apply, and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 24 April 2014. It was granted on the basis of an approved nomination for the position of Marketing Specialist with Eva Collections Pty Ltd.  The sponsor then informed the Department that the applicant had ceased working for the sponsor in April 2015.

10. At the hearing the applicant confirmed that he started working for the sponsor in March 2013. He confirmed that he ceased that employment on in December 2014. The reasons he ceased working for the sponsor are discussed in more detail below. He confirmed that he understood condition 8107.

11. On the basis of the oral evidence provided at the hearing the Tribunal finds the applicant ceased employment with his sponsor in December 2014. He has not returned to work for the sponsor since that time. The Tribunal finds the applicant has ceased employment for a period of more than 90 consecutive days. He is therefore in breach of condition 8107.

12. 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.

    Consideration of discretion

13. 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’.

14. In relation to the applicant’s purpose for travelling and staying in Australia the applicant gave the following evidence. He previously was sponsored by Eva Collections who imported and distributed e-cigarettes. Due to issues with meeting regulations the Department of Health stopped the sale of the product after the nomination application was approved. The sponsor could not offer him any other employment so he lost his job. He started looking for another sponsor in Australia because he wishes to stay in Australia and undertake skilled employment. He was able to find employment with a cosmetics company but only part-time. He wishes to work full-time. He has now found a sponsor, G J Food & Services Pty Ltd. The applicant has provided evidence to the Tribunal that the sponsoring business has had its nomination application approved. As at 6 July 2016 the applicant is the subject of an approved nomination of the occupation Wholesaler. The Tribunal gives this factor significant weight.

15. The applicant has acknowledged that he was in breach of condition 8107. However the Tribunal is of the view the circumstances in which this occurred were outside his control. It also notes he endeavoured to secure another sponsorship immediately and he has been successful at this. The Tribunal is satisfied this has been the only visa condition breach.

16. The Tribunal accepts that the applicant would suffer some hardship if the visa is cancelled as he would have to leave Australia and find suitable employment elsewhere. It also notes that his current sponsor would be disadvantaged having gone to some effort and expense to have the current nomination approved. The Tribunal gives this factor some weight.

17. The Tribunal is satisfied that the circumstances in which the breach occurred were outside the applicant’s control. The Department approved the previous nomination of which the applicant was the subject and then the Department of Health stopped the business undertaking the e-cigarette sales. The Tribunal is of the view the applicant has been disadvantaged by factors outside his control. The Tribunal accepts that he could not have envisaged this would happen.

18. The information before the Tribunal does not indicate any past or present conduct of the applicant which would weigh in favour of cancelling the applicant’s visa. There are no consequential cancellations. The applicant does not have any fear of returning to his home country.

19. Balancing all of these factors, the Tribunal places considerable weight on the circumstances under which the ground for cancellation arose as it is of the view these circumstances were beyond the applicant’s control. It also gives significant weight to the fact that the applicant is now the subject of an approved nomination and will be employed by his new sponsor G J Food & Services Pty Ltd to undertake skilled employment. It accepts the applicant wishes to remain in Australia to work in skilled employment which is in the spirit of the Subclass 457 visa program. The Tribunal is of the view the reasons in favour of not cancelling the applicant’s visa outweigh those reasons for cancelling his visa. 

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

    DECISION

21. 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