1608732 (Migration)

[2016] AATA 4467

1608732 (Migration) [2016] AATA 4467 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Karina Moises

CASE NUMBER:  1608732

DIBP REFERENCE(S):  BCC2016/1482257

MEMBER:David Dobell

DATE:29 September 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 29 September 2016 at 10:49am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 June 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 condition 8107 was breached. 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 12 August 2016 to give evidence and present arguments.

4. 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

5. The background to this matter is as follows:

   • A nomination in respect of the applicant was approved on 21 September 2015 for Videology Australia Pty Ltd as standard business sponsor
   • On 4 January 2016 the sponsor advised the Department that the applicant ceased employment on 31 December 2015
   • On 23 May 2016 the Department sent a notice of intention to consider cancellation of  visa
   • On 26 May 2016 the applicant responded

6. In her email response the applicant advised that she:

   • was unfairly dismissed
   • has a unique skillset, and will be much in demand here
   • has a  sister and family are here
   • would face great grief and financial struggle if she had to leave
   • has relentlessly been looking for work since January
   • has approached 40 companies look for work
   • has also approached recruitment companies

7. The applicant also attached references from employment agencies:

   • Kerry Allen, 25 May 2016
   • Become, Lauren Denny, 25 May 2016
   • Round 8, Daniel Bateson, 25 May 2016
   • S2M Digital, Samantha Watts, 25 May 2016

8. At the hearing, the applicant gave the Tribunal a signed job contract for her new employment, signed by her on 11 August 2016, and an email from Mr Joshua Rex, Managing Director, Ad2one dated 11 August 2016, advising that they are happy to sponsor her on a subclass 457 visa and that they will be making a nomination to that effect without delay.

9. The applicant advised the Tribunal that the employee is already an approved business sponsor and has other subclass 457 employees working there.  The matter has been handed to the firm’s migration agent and he is working to lodge the nomination by next Tuesday.

10. The applicant said that she last arrived in Australia on a visitor visa, and her subclass 457 visa application was in process at that time, and was approved shortly after that.

11. She confirmed that her employment ceased on 31 December 2015 with her sponsor. As to what happened, she said there were issues with the team structure and a lack of clarity and she confirmed that ‘it just didn’t work out’.

12. She has been searching for jobs since that time, having a number of agencies assisting her. She has had around 25 interviews in that time, but has only just now secured this job.  Her lack of local experience and contacts was a problem.

13. She has a sister here, who has been here for over 5 years. Her sister is in a de facto relationship with an Australian and has a 2 year old daughter.  She is in the process of applying for permanent residency.

14. She said there was no reason why she could not return to the US. As to hardship, she said that she has little savings left as she has been without work for over 6 months and has had to live on that.  She has a lease which she would rather not break and hence suffer financially, which expires in November 2016. She shipped a container of furniture over here so would have to ship that back home at a cost.

15. The Tribunal gave her one week to provide evidence that a new nomination had been lodged.

16. After the hearing, on 18 August 2016, the applicant provided the Tribunal with a copy of the new nomination acknowledgement letter from the Department of that date, and related receipt.

17. The Tribunal checked the new sponsor on ICSE and notes that the company is an approved sponsor and has had a number of other subclass 457 employees in various occupations.

18. The Tribunal also confirmed that her sister was currently seeking permanent residency by way of a partner visa.

19. On 22 August 2016 the Tribunal advised the applicant it would wait a reasonable period of time, until 29 September 2016, to see if the nomination was approved.

20. On 28 September 2016 the applicant advised the Tribunal that there had been no nomination approval as yet and that they have requested an expediting of their approval but have not heard anything.

21. The Tribunal checked the ICSE records on 29 September 2016 and notes that the nomination  has not yet been determined.

    Does the ground for cancellation exist?

22. 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. Relevant here is 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.

23. It is not in dispute that the applicant ceased working for her last sponsor on 31 December 2015 and has not since recommenced work with that sponsor.

24. As she has not returned to employment with his sponsor, the Tribunal finds that there was a failure to comply with condition 8107 commencing after 90 days from 31 December 2015.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation under 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

26. 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’. Policy states:

    Matters that should be considered
    It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder.

    The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder.

    The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting.

    Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

    •The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

    •The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

    •The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

    •The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

    •The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

    •Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

    •Whether there are mandatory legal consequences to a cancellation decision – as three examples:

    • whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations
    • whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and
    • whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

    •         Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:

    o        If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:

            Australia's international obligations and

            PAM3: Act - Compliance and Case Resolution - Case resolution –

    Guiding principles - Treatment of children.

    • Whether 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, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment – where these factors appear to relate to a visa holder, and delegates require further guidance, they should consult Refugee and International Law Section. Delegates must turn their mind to whether removal in breach of Australia’s international obligations would be a legal consequence of a cancellation decision. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia and non-refoulement obligations are assessed prior to removal.

    •         Any other relevant matters.

27. The Tribunal considered those aspects of policy which are relevant here.

28. The applicant first arrived in Australia in October 2013 on a subclass 601 visa. She was granted a subclass 457 visa in September 2015. She has been in Australia for almost 3 years.

29. As to the circumstances in which the breach arose, it appears that there was a mutual agreement for the applicant to leave on 31 December 2015.  It is difficult for the Tribunal to know the full details, given it is not hearing both sides. Thus the Tribunal is unable to determine whether the circumstances in which the ground for cancellation arose were beyond the control of the visa holder. However, it accepts that the applicant, as a subclass 457 visa holder, would not have left her sponsored employment without good reason because of the possible visa consequences.

30. The Tribunal accepts that she has been seeking work since that time and now has a new sponsor who has nominated her. It accepts that she has a sister here, whom she is close to, whose partner visa application is being processed, as well as a niece and brother-in-law. It also accepts that there will be some financial and emotional hardship should she be required to return to the USA.

31. The Tribunal also finds that the applicant has been truthful and cooperative in her dealings with the Department.

32. The Tribunal considers she is a genuine subclass 457 visa holder who has done her best to find an alternative sponsor despite facing some difficulties.

33. The Tribunal notes that the new sponsor is already an approved standard business sponsor and subclass 457 visa employer. The Tribunal has waited a reasonable period of time for the outcome of the new nomination but no determination has yet been made.  In the circumstances of this particular case, the Tribunal is not prepared to wait any further time for an outcome.

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

    DECISION

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

    David Dobell
    Member