1602926 (Migration)

[2016] AATA 4260

1602926 (Migration) [2016] AATA 4260 (9 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christian Sanmiya

CASE NUMBER:  1602926

DIBP REFERENCE(S):  BCC2016/476061

MEMBER:Glen Cranwell

DATE:9 August 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 09 August 2016 at 11:29am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107 of his 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.

3. On 11 July 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 August 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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?

6. 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 requires the applicant not cease employment in a nominated occupation for more than 90 consecutive days.

7. The applicant provided the Tribunal with a copy of the notice of intention to consider cancellation, which indicates that the Department received written notification on 22 September 2015 that the applicant ceased employment on 15 September 2015.  The applicant also provided a copy of a letter from Darryl’s Electrical Pty Ltd dated 6 March 2016, indicating that the applicant commenced employment with that company in October 2015 but that he was not the subject of an approved nomination.  As the applicant has ceased employment in a nominated occupation for more than 90 consecutive days, the Tribunal is satisfied that he has not complied with a condition of the visa.

8. 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

9. 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’, relevantly:

   ·the purpose of the visa holder’s travel to and stay in Australia

   ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

   ·the degree of hardship that may be caused to the visa holder and any family members

   ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

   ·the visa holder’s past and present behaviour towards the department

   ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

   ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

   oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

   owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

   ·any other matter the visa holder raises.

10. The Tribunal has not had the benefit of the applicant’s evidence in relation to the discretionary matters.  However, the Tribunal infers from the fact that the applicant was a holder of a Subclass 457 visa that his purpose of travel to and stay in Australia was to work.

11. The applicant ceased employment with his original sponsor on 15 September 2015.  He subsequently obtained employment with Darryl’s Electrical Pty Ltd. It appears from the relevant correspondence that Darryl’s Electrical Pty Ltd was approved as a standard business sponsor, but did not realise that a nomination application also had to be lodged and approved before employing the applicant.

12. The Tribunal has no evidence relating to the applicant’s current circumstances, and any hardship that the visa cancellation may cause him.  Although he provided evidence that his is a licensed electrical mechanic, the Tribunal has no evidence before it regarding the applicant’s future job prospects in Australia.  The delegate’s decision noted that the applicant had lodged a Subclass 189 visa application on 16 January 2016, but the Tribunal has no information as to the current status of that application.

13. The applicant has no children, and there is no behaviour of concern towards the Department.

14. Balancing all of these factors, the Tribunal places significant weight on the absence of evidence of any immediate employment prospects on the part of the applicant.  The applicant was granted a Subclass 457 visa on the basis of working in a nominated occupation, but he has not done so since September 2015.  The Tribunal accepts that there was some confusion as to the requirement for an approved nomination in relation to his subsequent employment with Darryl’s Electrical Pty Ltd.  The Tribunal accepts that the applicant would experience some hardship were he to return to Canada given the amount of time he has spent in Australia.  However, the Tribunal considers that such hardship to the applicant is outweighed by his apparent continuing unemployment in Australia.  Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Glen Cranwell
    Member