1611501 (Migration)

[2016] AATA 4447

1611501 (Migration) [2016] AATA 4447 (28 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaskaran Singh Dhillon
Mrs Harvinder Kaur Bhullar

CASE NUMBER:  1611501

DIBP REFERENCE(S):  BCC2016/575432

MEMBER:Carolyn Wilson

DATE:28 September 2016

PLACE OF DECISION:  Adelaide

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 28 September 2016 at 10:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 July 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 a condition 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 27 September 2016 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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 was attached to the applicant’s visa. Condition 8107(3) requires the following:

   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[1]:

   (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

   [1] 8107(3A) does not apply in this case.

9. On 18 November 2015 the sponsoring employer AV Foods Pty Ltd wrote to the Department to advise the applicant ceased employment with them on 6 November 2015.   The applicant does not dispute this, but says he ceased employment only because the business was sold to NS Beverages Pty Ltd.  There is no evidence NS Beverages is an associated entity of AV Foods.

10. The applicant ceased working for his sponsor on 6 November 2015.  He has not been working in the business of the sponsor, or an associated entity, and had ceased working there for a period exceeding 90 consecutive days.

11. 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

12. 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’.

13. The applicant was sponsored in the position of Cook at an Indian restaurant in Findon. Adelaide. He has provided evidence to the Tribunal of his experience in the occupation and references from other employers within the restaurant industry.

14. The Tribunal notes the business NS Beverages Pty Ltd has offered to sponsor the applicant.  The director of this business says skilled cooks are in short supply in Adelaide and he considers the applicant would be a valuable employee.  A nomination lodged to sponsor the applicant was refused by the Department, but another nomination application was lodged in June 2016.  The Tribunal notes the Department has yet to approve or refuse that nomination.

15. The Tribunal has considered the purpose of the 457 visa program, which is to allow skilled workers to work in Australia for approved business sponsors who cannot find an Australian citizen or permanent resident to fill the skilled vacancy.  The Tribunal gives considerable weight to the applicant’s ability to find a new sponsor in the same nominated occupation, who has declared they are unable to fill the vacancy with an Australian citizen or permanent resident.  The Tribunal gives weight also to the circumstances in which the ground for cancellation arose, which was beyond the applicant’s control.  There is no adverse information before the Tribunal to indicate any other breaches of visa conditions by the applicant.

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

    DECISION

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

18. The Tribunal has no jurisdiction with respect to the second named applicant.

    Carolyn Wilson
    Member