1603912 (Migration)

[2016] AATA 3854

1603912 (Migration) [2016] AATA 3854 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss On Hang Yau

CASE NUMBER:  1603912

DIBP REFERENCE(S):  BCC2016/509360

MEMBER:Rania Skaros

DATE:19 May 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 19 May 2016 at 9:17am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 March 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 applicant did not comply with condition 8107 that was imposed on that 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. The applicant appeared before the Tribunal on 13 May 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

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. The applicant was nominated under the Temporary Business Entry visa program by First Fusion Pty Ltd. Following the approval of the nomination in respect of the applicant by First Fusion, the applicant was granted a Subclass 457 on 21 January 2015 for a period of 4 years.

7. On 15 July 2015 the Department received information from First Fusion that the applicant ceased employment with them on 3 July 2015.

8. On 23 February 2016 the Department issued to the applicant a notice of intention to cancel her 457 visa on the basis that she may have breached condition 8107 as more than 90 consecutive days had passed since she ceased employment with the employer that most recently nominated her.

9. The applicant responded to the notice on 26 February 2016 and 16 March 2016. Details of the claims and evidence contained in her response are discussed further below. In considering whether to cancel the visa the delegate noted that more than 7 months had passed since the applicant ceased employment with her nominating employer and that she was still not the subject of a current approved nomination by an approved sponsor.

10. On review, the Tribunal received evidence of an approved nomination of an occupation in respect of the applicant and a letter of support from the sponsoring employer.

    Relevant law

11. 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?

12. 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. Of relevance is 8107(3), which provides:

    (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

    …………

13. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

14. The applicant was sponsored for a 457 Visa by First Fusion Pty Ltd. The nomination in the occupation of Graphic Designer in respect of the applicant by First Fusion Pty Ltd was approved on 28 January 2015. The applicant ceased work with First Fusion on 3 July 2015. The applicant conceded at the hearing that more than 90 days had passed since she ceased work with her sponsoring employer.

15. As more than 90 consecutive days have passed since the applicant ceased employment with the employer who most recently nominated her, the Tribunal finds that the applicant did not comply with condition 8107 that was imposed on her 457 visa. 

16. 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

17. 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’.

18. The applicant travelled to Australia in 2006 to study. She completed high school in Australia and went on to study a Bachelor of Communication Design at the College Arts (Griffith University) in Queensland. She was nominated by First Fusion Pty Ltd to work as a Graphic Designer. The applicant told the Tribunal that she resigned from her position with First Fusion because she was undertaking tasks that were not consistent with her job description, had little job satisfaction and her salary payments were delayed on a number of occasions. She stated that with her skills she felt confident she could find alternative employment, however the nominations made in relation to her were not approved within the 90 days. She told the Tribunal that she made every effort to find an employer that was prepared to sponsor her. She gave evidence that Regress Pty Ltd had sponsored her but that the nomination in relation to her was refused after 3 months of processing with the Department. She gave evidence that she then applied for a position with Global Printmart Australia Pty Ltd who agreed to nominate her. She stated that Global Printmart’s first nomination was refused because they did not provide sufficient evidence regarding the position and by the time they prepared the necessary documentation to lodge the second nomination her visa had been cancelled. 

19. The applicant told the Tribunal that Global Printmart’s second nomination in relation to her was approved by the Department on 2 May 2016. A copy of that nomination was provided to the Tribunal prior to the hearing. The Tribunal also received a letter from Mr Matthew Who, the General Manager of Global Printmart Australia, in which he stated that the applicant had applied for a position with them in November 2015 and that they were impressed with her experience, skills and the portfolio presented to them. He stated that after considering her skills and the contribution she would make to their business they decided to offer her a job because they were in the process of undertaking large projects from local businesses and needed a qualified graphic designer. Mr Who detailed the history of applying for the nomination in relation to the applicant and explained that if they were more familiar with the process the nomination may have been approved earlier. Mr Who indicated that the business currently has one graphic designer and due to the large projects in the pipeline, details of which he provided, the business has an urgent need for the applicant’s skills and hoped the cancellation of the visa can be revoked so she can commence working for them.

20. The Tribunal notes that the purpose of the temporary business entry visa is for holders of that visa to work for an approved sponsor in an approved occupation. The Tribunal notes that the applicant is now the subject of a current approved nomination in the occupation of graphic designer by an approved business sponsor. The Tribunal is satisfied that the applicant would now be able to fulfil the purpose of the 457 visa and this weighs in favour of not cancelling the visa.

21. The Tribunal also gives weight to the letter from the sponsoring employer indicating they have a need to employ the applicant as a graphic designer due to the large volume of work. The Tribunal notes that Department would have been satisfied that the nominating employer had a genuine need for a graphic designer before deciding to approve the nomination as this is a requirement under r.2.72(10)(f). The circumstances of the nominating employer weigh in favour of not cancelling the applicant’s visa.

22. At the hearing the applicant demonstrated a detailed knowledge of the conditions imposed on her current bridging visa and the last substantive visa held and gave evidence that other than her non-compliance with condition 8107 she has complied with all of the other conditions imposed on the 457 visa and the subsequent bridging E visa granted to her following the cancellation of the 457 visa by the Department. Also, there is no evidence before the Tribunal to suggest the applicant has not complied with the conditions of her current bridging visa or the last held substantive visa. The extent of the applicant’s compliance with visa conditions weighs in favour of not cancelling the visa.

23. The Tribunal has also considered the circumstances in which the ground of cancellation arose and notes that it was the applicant’s decision to cease employment with First Fusion Pty Ltd, her initial nominating employer, before having secured another nomination. By resigning from her position before securing another nomination first the applicant brought about the circumstances that led to her breaching condition 8107. The Tribunal acknowledges the applicant’s evidence that she resigned due to delayed salary payments and undertaking tasks that were not consistent with her position, however, as explained to the applicant at the hearing, it is significant that she made little effort to seek advice from relevant government authorities, such as the Fair Work Ombudsman, about any avenues of legal redress she may have had or speak to the Department about her circumstances and options. For these reasons, the Tribunal does not consider the circumstances in which the ground of cancellation arose to be in favour of not cancelling the visa.

24. The Tribunal has also considered the hardship that may be caused if the visa is cancelled. The Tribunal accepts that the sponsoring employer has invested the time and funds to secure a favourable nomination for the position of graphic designer in respect of the applicant and may face some hardship due to their current workload if the applicant is not able to commence work as soon as possible. The Tribunal also notes that if the applicant’s visa is cancelled she will be prevented by s.48 of the Act from making a valid Subclass 457 visa onshore and would need to Department Australia to lodge that application which would result in her incurring additional costs and delay commencement of her employment with the sponsoring employer who, as the Tribunal has accepted, has a genuine need to fill the nominated position. The Tribunal gives weight to these considerations in favour of not cancelling the visa.

25. The applicant has given evidence that she has been cooperative with the Department and there is nothing before the Tribunal to suggest this is not the case.

26. The Tribunal also notes that there would not be any consequential cancellation under s.140 of the Act if the applicant’s visa is cancelled and there is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation. 

27. The Tribunal has also considered the applicant’s evidence that she has lived in Australia since 2006, has obtained her qualifications in Graphic Design from an Australian tertiary institution and wants to pursue a career in the field of design in Australia.

28. Having carefully considered the circumstances overall, the Tribunal is satisfied that the circumstances in favour of not cancelling the visa outweigh those in favour of cancelling the visa.  For these reasons, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Rania Skaros
    Member