1607420 (Migration) - [2016] AATA 4152

1607420 (Migration) [2016] AATA 4152 (25 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Singh
CASE NUMBER:  1607420
DIBP REFERENCE(S):  BCC2015/188676
MEMBER:Michael Cooke
DATE:25 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 187 -Regional Sponsored Migration Scheme visa.
Statement made on 25 July 2016 at 4:57pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 May 2016 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.137Q on the basis that he had not commenced employment within 6 months and did not satisfy the delegate that he had made a genuine effort to commence that employment.
The issue in the present case 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 25 July 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).
Whether the ground of cancellation exists - employment not commenced
Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the Regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.
Findings and reasons on:
·the employment referred to in the related employment nomination,
The visa holder was offered a position at Dragon Spirit Pty Ltd trading as KC’s Pies and Pastries in Mackay. The applicant moved from Brisbane to take on the position in Mackay - a regional city in North Queensland.
·whether the applicant commenced that employment in the relevant period and,
The visa holder approached his employer at their Brisbane (Sunnybank) office regarding starting work and was told that (despite their promise) there was insufficient work for him at that time. Nevertheless they informed him that he had six months to commence work. Unbeknownst to the visa holder the employer in the meantime had notified the Department that he had not commenced work. The Department then began the process of cancellation. He, in the meantime, had moved to Mackay expecting to be employed within the six months stipulation.
As the stipulated 6 months was closing fast and he had heard nothing he rang the employing firm in June 2015. Even then they did not inform him that they had begun the process with the Department - he claims. Instead he claimed they informed him there would not be any action by the Department for breach. He believed her because she was a migration agent as well - he informed in the hearing.
A year later the Department then contacted him with its Consideration of Cancellation notice. Oblivious to the act of the employer in initiating cancellation and believing he would get the promised job, he had waited the six months period in Mackay anticipating the promise of a job opening with the firm but no job eventuated Having recognized that they had (he claims) tricked him with the job he was financially stretched and stayed in Mackay driving a taxi. At the same time there was a massive downturn in the mining industry in the region that caused economic chaos in Mackay disenabling him from finding a similar job with another employer.
·if not, whether satisfied of genuine effort to commence that employment.
The Tribunal finds that the fact that the visa holder moved a considerable distance from Brisbane to Mackay in North Queensland is indicative of the fact that he made a genuine effort to commence that employment. He has remained there despite his financially straightened circumstances occasioned by the failure of his employer to provide the promised job.
Consideration of discretion
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, 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 ‘Regional sponsored employment visa cancellation’.
The Tribunal found the applicant to be a reliable witness and has considered his personal circumstances. The Tribunal finds the conduct of the proposed employer to be unsatisfactory and this has left the visa holder in a financially stringent situation. He understood that he had secured a permanent visa and intended to make his future in Australia. He had informed his India-based family of this. Lamentably he also informed his fiancée who he proposes to marry later this year. As a consequence his visa travails have caused a potentially shocking loss of face and personal humiliation to the visa holder. This would cause a significant degree of psychological, emotional or other hardship – the view of the Tribunal.
At the same time he has no history of visa infractions and his conduct with the Department is impeccable. Furthermore, the circumstances in which ground of cancellation arose were patently beyond the visa holder’s control. A cancellation would involve the applicant being unlawful and subject to detention and there are provisions in the Act which would prevent the person from making a valid visa application without the Minister’s intervention
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 187 - Regional Sponsored Migration Scheme visa.
Michael Cooke
Member