1614463 (Migration)

[2016] AATA 4672

1614463 (Migration) [2016] AATA 4672 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thomas Gerard Kennerlly
Ms Marion Louise O'Sullivan

CASE NUMBER:  1614463

DIBP REFERENCE(S):  BCC2016/2415883

MEMBER:Carolyn Wilson

DATE:22 November 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision 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 22 November 2016 at 9:56am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 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 he had ceased working for more than 90 days for the standard business sponsor in his approved nomination, and therefore had not complied with 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 first named applicant (hereafter the applicant) appeared before the Tribunal on 3 November 2016 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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. The applicant was sponsored by Duffy and Mcgowan Construction Pty Ltd in the position of carpenter.  The employer went into administration in January 2016 and the business was wound up on 7 April 2016.The applicant ceased employment with his sponsor when the company went into administration in January 2016, although the Tribunal understands the applicant may have considered if effectively ceased in April 2016 when the business was wound up.  In any event, the applicant is no longer working in a position in the business of the sponsor or an associated entity of the sponsor, and has ceased to do so for a period exceeding 90 days.

10. 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

11. 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’.

12. The Subclass 457 visa was granted for the purpose of the applicant’s travel and stay in Australia to work temporarily in a nominated position for a standard business sponsor. He has not worked for a standard business sponsor since the company ceased trading in January 2016, and the Tribunal gives significant weight to this.

13. The applicant claimed at hearing that he had secured another sponsor, ADC Constructions Pty Ltd.  The week prior to the hearing, his representative provided evidence of the nomination application lodged by ADC Constructions. The applicant told the Tribunal that he was awaiting the outcome of that nomination application.  He confirmed his representative was also acting for the new sponsor.

14. Following the hearing the Tribunal enquired about the progress of the new sponsor’s nomination application.  Those enquiries revealed the nomination had been refused by a delegate of the Department on 14 October 2016.  The Tribunal put this information to the applicant in writing, pursuant to s.359A.  The Tribunal also put to the applicant that it appeared he and his representative had provided false and misleading information, in seeking to rely on a nomination application that they knew had been refused.

15. In response to the s.359A invitation, the applicant has not responded to the issue that he provided false and misleading information.  His representative has merely responded that the applicant is no longer proceeding with the sponsor ADC Constructions, but has now lodged another nomination application with a new sponsor Monford Group Pty Ltd.  The representative also provided an unsigned employment contract purportedly between the Monford Group Pty Ltd and the applicant, dated 16 November 2016.

16. The Tribunal gives significant weight to the length of time the applicant has been without an approved nomination.  He was aware from January 2016 of the need to find a new sponsor, when the standard business sponsor he worked for went into administration.  He attempted to obtain an approved nomination, but that has been refused.  When this information was put to him by the Tribunal, he has identified another new potential sponsor.  There was no mention by the applicant at hearing that he was pursuing possible sponsorship by Monford, and the Tribunal has concerns about the genuineness of the new nomination application.  However, the Tribunal has taken the new nomination application into account when exercising its discretion.

17. The applicant says he has suffered financial hardship in having his visa cancelled. He claims to have lived off savings and with help from siblings living in Australia. 

18. The Tribunal has taken into account the applicant’s conduct towards the Department. There is no evidence he has been uncooperative.  There is no evidence before the Tribunal of other breaches of visa conditions.

19. The Tribunal acknowledges the cancellation of the visa means the applicant will need to depart Australia within a set time period to avoid becoming unlawful.   The applicant’s partner will be affected by a consequential cancellation under s.140.  The Tribunal considers these are intended consequences and gives them little weight. 

20. The Tribunal is not aware of any claims or circumstances that would result in any international obligations being breached as a result of the cancellation. 

21. The applicant says he wants to stay in Australia because he loves living in Perth.  He has a number of siblings living here

22. The Tribunal has considered the financial hardship that will be caused to the applicant if the visa remains cancelled, and his desire to remain in Australia where his siblings live.  However, the Tribunal gives greater weight to the purpose of the visa, that is, to work temporarily under the 457 program for an approved sponsor in his nominated skilled occupation.  The applicant has not worked for his sponsor since January 2016 when the company went into administration. The Tribunal acknowledges the applicant’s employment ended due to a circumstance out of his control. However the Tribunal gives significant weight to the inability of the applicant to obtain another approved nomination with a standard business sponsor in the last 10 months.  The Tribunal acknowledges another nomination application was lodged last week, but considers the 457 visa is not a de facto ‘bridging visa’ such that this newly lodged application is of itself a reason to reinstate the visa.  The applicant is not currently working for an approved sponsor and has not for 10 months. The Tribunal finds this circumstance outweighs the hardship caused by the cancellation.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

24. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Carolyn Wilson
    Member