1611232 (Migration)

[2016] AATA 4786

1611232 (Migration) [2016] AATA 4786 (14 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Igor Ronay Jonas

CASE NUMBER:  1611232

DIBP REFERENCE(S):  BCC2016/2112197

MEMBER:Glen Cranwell

DATE:14 December 2016

PLACE OF DECISION:  Brisbane

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 14 December 2016 at 11:28am

CATCHWORDS

Migration – Cancellation –Temporary Work (Skilled)) visa – Subclass 457 – Circumstances no longer exist – No longer spouse of primary visa holder – Applicant’s employer wants to submit nomination

LEGISLATION

Migration Act 1958, s 116(1)(a), s 48

Migration Regulations 1994, r 1.12, PIC 4014

CASES

MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 July 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)(a) on the basis that a circumstance which permitted the grant of the visa no longer existed. 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 14 December 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. 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)(a). 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)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, ie satisfaction (per French and North JJ at [54]).

7. At the time a Class UC visa was granted to him, Part 457 of the Regulations provided that a so-called secondary applicant who did not already hold a relevant visa could be granted a visa where they were the member of the family unit of a person who held a relevant visa or had met criteria for a Subclass 457 visa. A member of the family unit was relevantly defined at r.1.12 to include, for an applicant for a Class UC visa, the spouse or de facto partner of the applicant.

8. It is not in dispute that the applicant is no longer a spouse or de facto partner of the primary visa holder, Julia Dantas Messias Oliveira Maia. The Tribunal is therefore satisfied that a circumstance permitting the grant of a visa to him has ceased to exist. As a result, his visa is liable to cancellation under s.116(1)(a). The Tribunal must now 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 regards the applicant’s purpose of coming to and staying in Australia as being to accompany Ms Maia.  That purpose no longer exists.

11. There is no evidence before the Tribunal to indicate that the applicant has breached any visa conditions, and there is no behaviour of concern towards the Department.  The ground for cancellation arose due to his relationship with Ms Maia ceasing.

12. The applicant gave evidence that he arrived in Australia in April 2013.  During the past three and a half years, he has established a life in Australia.  The applicant married his current wife on 13 December 2016.

13. The applicant is currently employed with Bar Sushi Noosa, and his employer wishes to sponsor and nominate him for a Subclass 457 visa.

14. The Tribunal accepts that, if it affirms the delegate’s cancellation of the applicant’s visa, he will be affected by s.48 of the Act and thereby prevented, with limited exceptions, from lodging a further substantive visa application on-shore. This would preclude him from applying on-shore for a Subclass 457 visa in anticipation of a successful nomination by Bar Sushi Noosa. The Tribunal also accepts that, if the applicant’s visa is cancelled, he would be adversely affected by Public Interest Criterion (PIC) 4014 and may not be able to return to Australia for up to 3 years unless he can demonstrate that there are compelling circumstances that affect the interests of Australia. The impact of PIC 4014 arises because the applicant did not apply for a Bridging E visa within 28 days of cancellation of his Subclass 457 visa on 19 July 2016. The applicant indicated at the hearing that this would have an adverse impact not only on himself, but also Bar Sushi Noosa and also his new wife.

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

    DECISION

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

    Glen Cranwell
    Member