BINTI HASSAN (Migration)

[2017] AATA 3112

BINTI HASSAN (Migration) [2017] AATA 3112 (27 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hafizah Binti Hassan
Master Muhammad Shazwan Bin Muhamad Zakaria
Miss Aisha Shafiqah Binti Muhamad Zakaria
Master Muhammad Shahmi Bin Muhamad Zakaria

CASE NUMBER:  1513457

DIBP REFERENCE(S):  BCC2015/2610126

MEMBER:Katie Malyon

DATE:27 February 2017

PLACE OF DECISION:  Sydney

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 other applicants.

Statement made on 27 February 2018 at 11:21am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether the ground for cancellation exists - Whether the applicant is working in the business of her sponsoring entity – Sponsoring business no longer operating – Grounds for cancellation exist – Whether the visa should be cancelled – Non-compliance beyond the control of the applicant - Other conditions of visa complied with – Genuine attempts made to secure sponsorships – Significant ties to Australia – Significant hardship if visa were to be cancelled – Decision set aside and substituted

Practice and Procedure – Consequential cancellations – Tribunal has no jurisdiction to review consequential cancellations

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Corporations Act 2001 (Cth), s 601AB
Migration Act 1958 (Cth), ss 116(1)(b), 140, 140M, 348, 359A, , 363(1)(b), 375A
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013, 4014, Schedule 8, Condition 8107

CASES
Chen v DIBP [2016] FCCA 2351
Prasad v MIEA (1985) 65 ALR
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 September 2015 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa of first named applicant, Ms Hafizah Binti Hassan, under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that Ms Hassan was in breach of condition 8107 attached to her visa because she was not working in a position in the business of her sponsoring entity WMV Pty Ltd (WMV), or an associated entity.  A copy of the delegate’s decision was provided to the Tribunal at the time of the review application.  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 Ms Hassan. The other applicants are her children. Their visas were automatically cancelled as a consequence of cancellation of Ms Hassan’s visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the Ms Hassan’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) of the Act, the Tribunal has no jurisdiction with respect to them.

4. Ms Hassan first appeared before the Tribunal in Melbourne on 3 December 2015 to give evidence and present arguments (the First Hearing).  The Tribunal also received oral evidence from her husband, Mr Muhmad Zakaria Abdul Manap, and from Mr Mohammad Ramzan, the owner and sole Director of a proposed future sponsor, Amfah (Aust) Pty Ltd (Amfah).  The applicants were represented in relation to the review by their registered migration agent.

5. On 9 October 2017, Ms Hassan appeared before the Tribunal again, differently constituted, in Sydney to give evidence and present arguments (the Second Hearing).  The Tribunal also received oral evidence from her husband, Mr Abdul Manap.  The applicants were represented in relation to the review by their new registered migration agent, who replaced their former representative.  The Tribunal has listened to the recording of the First Hearing. 

6. For the following reasons, the Tribunal has concluded that the decision to cancel Ms Hassan’s Subclass 457 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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act that the holder of the visa has not complied with a condition of the visa. 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) of the Act if the Minister, or the Tribunal, is satisfied that the holder did not comply with a condition of their visa.

9. Since Ms Hassan’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable.  This requires Ms Hassan to work only in the occupation listed in the most recently approved nomination in relation to her, and only in the business of her sponsor, or an associated entity.  In addition, if she ceases employment, the period during which she ceases employment must not exceed 90 consecutive days.  There is an exception which includes certain specified occupations not applicable in this case. 

10. Ms Hassan’s Subclass 457 visa was granted on 10 March 2014 on the basis of being nominated by WMV in the occupation of Chef.  On 11 September 2015, the Department sent Ms Hassan a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 457 visa.  The NOICC stated that publicly available information from the Australian Securities and Investments Commission (ASIC) website indicates her sponsor, WMV, was deregistered on 31 May 2015 under s.601AB of the Corporations Act 2001.  The NOICC also stated that this information indicates the business which sponsored her was no longer lawfully operating and that, accordingly, the requirement of condition 8107(3)(a)(ii)(B) – that is, that she work in the business of her sponsor – was therefore not met.  

11. In her response to the NOICC, as well as in her oral evidence at both of the Tribunal’s hearings, Ms Hassan did not dispute that she was in breach of condition 8107(3)(a)(ii)(B) by no longer working for her sponsor and condition 8107(3)(b) by ceasing her employment for more than 90 days.  Specifically, in her oral evidence at the First Hearing and as confirmed at the Second Hearing, Ms Hassan agreed that her sponsor’s business ceased operating in May 2015 and, therefore, she had been unable to continue working in the business since then.

12. Having regard to the information in relation to cessation of the business of Ms Hassan’s sponsor WMV as set out in NOICC and restated in the delegate’s decision, combined with her acknowledgment of this in evidence at both of the Tribunal hearings, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

13. 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 Ms Hassan’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’.

    The purpose of the visa holder’s travel and stay in Australia

14. The Tribunal notes that the relevant visa cancelled was a Subclass 457 visa: this visa affords no permanent rights of residence.  Rather, the visa was granted to enable Ms Hassan to work in Australia as a Chef for a limited period of employment on a temporary basis only.

15. Nevertheless, the Tribunal accepts the evidence and submissions on behalf of Ms Hassan that the overarching purpose in travelling to Australia was to settle here with her family.  The Tribunal also acknowledges her claims and submissions in relation to the negative impact on her children if her visa were to be cancelled.  Ms Hassan’s evidence in this regard is discussed further below. 

16. It is accepted that Ms Hassan’s previous sponsor, WMV, has been deregistered by ASIC.  Initially, she found a new sponsor, Al Falah (Aust) Pty Ltd (Al Falah), which lodged a nomination application in respect of her to allow her to continue to work as a Chef. However, it is acknowledged that the Department finalised this nomination as not approved after Al Falah withdrew its sponsorship application. Ms Hassan then found another sponsor, Amfah, which proceeded to lodge a nomination with her as the nominated worker. Amfah’s Director, Mr Ramzan, gave oral evidence at the First Hearing confirming his proposed sponsorship of Ms Hassan through his business Amfah. However, as set out in the Tribunal’s s.359A letter of 26 October 2016, Amfah’s nomination application was refused by the Department and, on 21 October 2016, the Tribunal affirmed that refusal.

17. Subsequently, Ms Hassan was nominated on 1 June 2017 by Le Montage Pty Limited (Le Montage) as Head Chef at one of its major venues, Oatlands House.  Currently, Ms Hassan works at Oatlands House as Head Chef, consistent with the terms of her current Bridging E visa with work rights.  A copy of the nomination has been provided to the Tribunal and includes not only Ms Hassan’s 3 children but also her husband, Mr Abdul Manap. 

18. The Tribunal notes Le Montage operates a number of large wedding and event facilities in Sydney and was previously approved as a standard business sponsor for 3 years.  When Le Montage’s sponsorship expired on 28 November 2017, a new sponsorship application was lodged. 

19. The Tribunal has independently confirmed that Le Montage was approved as a sponsor on 16 February 2018 for a period of 5 years.  As at the date of this decision, the nomination application made by Le Montage remains pending.  However, Ms Hassan’s current representative provided the Tribunal with written advice from the solicitor who has assisted Le Montage for more than 5 years in which she states that, in that time, all nomination applications have been approved. 

20. In the circumstances, Ms Hassan is still awaiting the outcome of the nomination application made on 1 June 2017 by Le Montage, which has just recently been approved as a sponsor.  The Tribunal considers this weighs in favour of not cancelling her visa.   

    The extent of compliance with visa conditions

21. The delegate found that the extent of Ms Hassan’s non-compliance was significant, given that in excess of 90 days had elapsed since she was not working in a position with her sponsor WMV: she had not worked with WMV for 4 months.  The Tribunal acknowledges Ms Hassan’s oral evidence that the closure of WMV’s business was beyond her control and she has attempted to find replacement sponsors since then.

22. Of concern, however, is information from the Department’s file which raises possible issues about Ms Hassan’s compliance with condition 8107 which requires that she only work in her nominated occupation of Chef. Specifically, as set out in the Tribunal’s s.359A letter of 26 October 2016, on 1 December 2015 the Department took action under s.140M of the Act against WMV to bar it for 5 years from making further applications for approval as a standard business sponsor. The Department took this action in part due to WMV’s failure to ensure that Ms Hassan only worked in her nominated occupation of Chef. According to the NOICC,

    this finding was based on the following key evidence:

    ·the Department visited WMV’s work premises on 2 separate occasions and, on no occasion, was she observed to be working as a Chef ; and,  

    ·in 2 separate interviews with Departmental officers, on 8 October 2014 and 23 July 2015, the Director of WMV, Mr Kamsani, advised that Ms Hassan received a salary of $96,400 as he relied on her to run the Riks Maha as Manager.  He also said that he was unaware of what happened at the business because she ran it for him.

23. The Tribunal raised the gist of these allegations in broad terms with Ms Hassan at the First Hearing: she denied it. On 26 October 2016, the Tribunal then sent her a letter pursuant to s.359A of the Act particularising the above key points of evidence and provided her with a copy of the relevant s.375A non-disclosure certificate. In response, her new representative denied that this had ever occurred and stated her understanding that the (real) Manager of the Riks Maha restaurant had informed the Departmental officers of not only his role in the business as Manager but also the fact that Ms Hassan was the Chef.  The representative noted she had been unable to locate copies of any Departmental notes from the site visits and reminded the Tribunal of observations by Wilcox J in the Federal Court of Australia decision in Prasad v MIEA (1985) 65 ALR:

    If the Department is to continue to rely upon interviews of parties as the primary method of determining the genuineness of relationships – a course, the wisdom of which, is open to serious question – it seeks most desirable for it to arrange for those interviews to be tape-recorded and that the tapes to be made available to those who have to evaluate the answers. 

24. Ms Hassan told the Tribunal at the Second Hearing that she did not ever work as Manager of Riks Maha restaurant.  Her new representative provided the Tribunal with a letter from Mr Brett Tournier dated 14 September 2017 in which he states the following:

    ·he was employed at Riks Maha from November 2014 until July 2015 as Manager.

    ·Ms Hassan was Head Chef working under his management and she worked from March 2014 until July 2015 in that role.

    ·on 1 April 2015, when the immigration field team came to do the site inspection, he was in the shop Geelong Kopitiam which is next door to Riks Maha: both shops are operated by the same owner (that is, WMV).

    ·the Department mistakenly handcuffed one of his part-time staff as they initially thought he was illegal but released him later when they realised it was their system error.

    ·when the site inspection took place, Ms Hassan’s husband (Mr Abdul Manap) was in the kitchen at Geelong Kopitiam talking to him as they are family friends and his boys are very close to him as well.

    ·Mr Abdul Manap was never on his payroll. 

25. During the course of the Second Hearing, the Tribunal requested Ms Hassan’s new representative provide the Tribunal with a Statutory Declaration from Mr Tournier confirming the information in his letter and evidence of his employment with Riks Maha. 

26. After the Second Hearing, Ms Hassan’s new representative provided a Payroll Advice for Mr Tournier which confirms his position as Restaurant Manager with Riks Maha as at 26 March 2015.  Furthermore, he provided a Statutory Declaration sworn 17 October 2017 in

    which he states:

    ·he worked part-time as a Manager at Riks Maha from late 2014 until mid-2015.

    ·Ms Hassan was Head Chef at Riks Maha while he was Manager there until the business closed down in mid-2015

    ·he never once saw, or heard, Ms Hassan do any duties other than that of Head Chef.  He never saw, or heard, her serve a customer or do anything management related outside what is required of a Head Chef such as food planning, supervising and ordering stock.  There is no reason why she would do otherwise.  As Head Chef, she had significant responsibility and was respected.  He saw her as a hard-working, diligent, honest woman.

    ·Ms Hassan’s husband Mr Abdul Manap did not work for the business in any capacity: in fact, he did not work at all.  Mr Tournier knows this because, in all the time that Ms Hassan worked there, he recalled her husband regularly visiting the shops not only because his wife worked there but also because he was friends with a number of the staff including Mr Tournier himself.  Mr Abdul Manap would sit and talk and sometimes help with errands like handing out payslips.  Mr Abdul Manap was not on the payroll and did not, in any sense, work for the restaurants. 

    ·Mr Tournier was present during an immigration site visit in April 2015 and was quite surprised by what he saw.  The officers ignored him and did not speak with him.  In his opinion, they did this because he is Australian.  A staff member was mistakenly handcuffed.  He found the whole process aggressive and disrespectful.

    ·It is sad what has happened to Ms Hassan and her family.  He never saw anything untoward at all in their behaviour and considers them welcome parts of the Australian community.

27. The Tribunal has before it inconsistent information regarding the role undertaken by Ms Hassan at Riks Maha. On the one hand, is evidence set out in the NOICC and the Tribunal’s s.359A letter in relation to information provided by Mr Kamsani on 8 October 2014 that, while Ms Hassan cooks for the business, her duties include looking after daily takings as Manager. Further, it in a telephone interview on 23 July 2015, Mr Kamsani stated he was unaware of what happened at the business because Ms Hassan ran the business. On the other hand, the Tribunal has evidence from Ms Hassan and Mr Tournier that he was the Manager of Riks Maha.  This is confirmed for the Tribunal by the Payroll Advice provided by Mr Tournier confirming he was Restaurant Manager at Riks Maha on 26 March 2015.  At the time Mr Kamsani gave evidence in July 2015 to the Department it is clear that his restaurant was experiencing financial difficulties and this may have impacted his advice to the Department.  The Tribunal has also reviewed the Department’s file notes of the site inspection made on 1 April 2015 and there is no reference to work that Ms Hassan was observed doing.  The Tribunal understands that, following the site inspection on 1 April 2015, both Mr Tournier and Mr Kamsani visited the Department’s office in Lonsdale Street, Melbourne in late May 2015 and had discussions with a departmental officer.  File notes in the Department’s file confirm that Mr Kamsani advised the officer that Mr Tournier is the Manager of Riks Maha.  However, a later file note confirms Mr Kamsani returned to the Department’s offices again in late July 2015 and gave inconsistent evidence.  In any event, the delegate’s decision makes no reference to Ms Hassan being in breach of condition 8107(3)(a)(i) which requires her to work only in the occupation listed in the most recently approved nomination.  In the circumstances, and having regard to available evidence, the Tribunal prefers the evidence of Mr Tournier and Ms Hassan that she only ever worked at Riks Maha as a Chef.

28. Based on evidence provided, as noted above at paragraph [11], the Tribunal finds that Ms Hassan has not complied with condition 8107(3)(a)(ii)(B) which requires her to work only in the business of her sponsor and, further, she has not complied with condition 8107(3)(b) which requires her to not stop working for her sponsor for more than 90 days.   Apart from its findings in relation to Ms Hassan’s acknowledged breach of these conditions, the Tribunal finds that Ms Hassan has complied with all other conditions attached to her Subclass 457 visa.

29. Following cancellation of her Subclass 457 visa on 30 September 2015, Ms Hassan successfully obtained a Bridging E visa 6 days later on 6 October 2015.  On 3 December 2015, she was given full work rights on her Bridging E visa.  There is no evidence before the Tribunal to indicate that Ms Hassan has not complied with the conditions of her Bridging E visa. 

1. The Tribunal has given these matters due weight in favour of reinstating Ms Hassan’s Subclass 457 visa.

   The degree of hardship that may be caused: financial, psychological, emotional or other hardship

2. As noted above, the Tribunal acknowledges the hardship issues raised by Ms Hassan and her husband in their oral evidence and written submissions which may be caused by the cancellation of Ms Hassan’s Subclass 457 visa.  The Tribunal accepts that Ms Hassan and her 3 children have lived in Australia for approximately 10 years and her children have been studying here.  

3. Specifically, the Tribunal acknowledges that the impact would be particularly great for Ms Hassan’s youngest child who has been living in Australia since he was only approximately 10 months old and has completed all of his schooling in Australia to date.  The Tribunal also accepts that his relocation back to Malaysia would expose him to a completely different education system.  The Tribunal also acknowledges the impact that relocating to Sydney to find work has had on her daughter who has had to discontinue her studies at the Royal Melbourne Institute of Technology and find work to help her family through this difficult time in their lives.  Further, the Tribunal notes Ms Hassan’s oldest son is enrolled in his second year at La Trobe University undertaking a Bachelor of Information Technology.  The Tribunal acknowledges the financial hardship that Ms Hassan and her family may face in re-establishing their lives back in their home country of Malaysia.  The Tribunal acknowledges Ms Hassan’s claim that she has no job to return to it in Malaysia and that, as she is much older, she would have limited opportunities and prospects upon their return. 

4. Mr Abdul Manap also told the Tribunal about his desire to be near family members in Australia including his Australian citizen siblings, Muhamad Khairillah Abdul Manap and Moraisha Binte Abdul Manap.  One brother, Muhamad Faisal Bin Abdul Manap, also has close ties to Australia having obtained a Bachelor of Psychology from Monash University in 2006 after 3 years study here.  Although eligible, this brother has chosen not to take out permanent residence in Australia (and become an Australian citizenship) because he is one of only 6 Muslim Members of the Singaporean Parliament.  Mr Abdul Manap told the Tribunal that his brother in Singapore cannot take out permanent residence in Australia if he wishes to continue to serve in the Singaporean Parliament.  After the Second Hearing, the applicants’ representative provided evidence of the Australian citizenship of Mr Abul Manap’s siblings and his other brother’s membership of the Singaporean Parliament.

5. The Tribunal has given these matters due weight in favour of reinstating Ms Hassan’s Subclass 457 visa.

   The circumstances in which ground of cancellation arose

6. The Tribunal accepts Ms Hassan’s submission that the ground for cancellation of her visa arose from the deregistration of her sponsor WMV, which was a matter totally beyond her control.

7. In line with Departmental policy guidelines, the Tribunal accepts that this creates a presumption in favour of reinstating her visa.  Accordingly, the Tribunal has given this due weight.

   Past and present conduct of the visa holder towards the Department

8. The Tribunal acknowledges the delegate’s finding that Ms Hassan has been co-operative with the Department and has provided information when requested.  The Tribunal gives this due weight.  

   Whether there would be consequential cancellations under s.140 of the Act

9. The Tribunal is mindful that cancellation of Ms Hassan’s visa has resulted in consequential cancellations under s.140 of her children’s visas: namely, the second, third and fourth named applicants. As indicated earlier, the Tribunal is also mindful of the hardship that may be caused to these persons as a consequence of this cancellation.

   Whether there are mandatory legal consequences to a cancellation decision

10. The Tribunal finds that affirming cancellation of Ms Hassan’s Subclass 457 visa could result in her being an unlawful non-citizen if she does not leave Australia in the permitted time and she may thereby be subject to being detained at an immigration detention centre.  The Tribunal gives no weight to this consideration in not cancelling the visa as it is an intended consequence.   

11. Ms Hassan currently holds a Bridging E visa with work rights allowing her to remain lawfully in Australia and work.  Should she wish to apply for another Subclass 457 visa from overseas, she will not be subject to a penalty under Public Interest Criterion (PIC) 4013.  Furthermore, as she obtained her Bridging E visa on 6 October 2015 (that is, within 28 days of cancellation of her Subclass 457 visa on 30 September October 2015) she will be subject to a risk factor under PIC 4014.  Consequently, she could apply for a Subclass 457 visa to return to Australia and not be subject to a bar on returning for 3 years (unless the Minister is satisfied that there are compelling circumstances that affect the interests of Australia or, in the alternative, compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australia on permanent resident or an eligible New Zealand citizen). 

12. The Tribunal has given this matters due weight in favour of cancelling Ms Hassan’s Subclass 457 visa.

    Whether any international obligations would be breached as a result of the cancellation

13. As noted in the delegate’s decision, consideration was given to whether cancellation would not be in the best interests of Ms Hassan’s 3 children, in line with the principles set out in the Convention on the Rights of the Child (CROC).   However, the delegate concluded that the level of hardship arising from this does not provide a strong reason not to cancel the visa, particularly given that the cancellation of the visa would not result in the separation of Ms Hassan from her children.  The Tribunal raised this finding with Ms Hassan at the First Hearing and no contrary submissions were made.

14. The Tribunal is mindful of the obligation to consider the best interests of Ms Hassan’s children, particularly her youngest child in light of the fact that her other 2 children are now aged over 18.  As noted above, the Tribunal is mindful of the adverse impact on this child if Ms Hassan returns to Malaysia.  The Tribunal has given this due weight in favour of reinstating the applicant’s Visa

    Any other relevant matters

15. The Tribunal also notes that the Department has provided the Tribunal with adverse information alleging that Ms Hassan’s husband, Mr Abdul Manap, has been working in Australia despite not holding work rights. Specifically, as set out in the Tribunal’s s 359A letter of 26 October 2016, during site visits to restaurants linked with WMV - namely Noodle Hut Halal, De Asian Hut and Riks Maha - employees there identified Mr Abdul Manap as the boss and said he helped run the restaurants, by visiting them to pay wages in cash, receiving daily takings and sending text messages to staff regarding their rosters.

16. The Tribunal acknowledges the denials by Ms Hassan and Mr Abdul Manap of these allegations at both the First Hearing and the Second Hearing.  It also acknowledges the evidence of the Riks Maha Manager Mr Tournier and the inconsistent advice given by WMV owner to the Department referred to above.  The Tribunal is also mindful that Mr Abdul Manap is not an applicant in the present matter: and, therefore, the allegations are somewhat peripheral to the decision to cancel Ms Hassan’s visa.  Furthermore, the Tribunal is also mindful that no action has been taken against Mr Abdul Manap in response to these allegations: this raises doubt in the mind of the Tribunal over the strength of the evidence in support of the allegations.

17. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that is: accessible, fair, just, economical, informal and quick as well is proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.  In this case, the Tribunal considered whether, consistent with the decision in Chen v DIBP [2016] FCCA 2351, it should further adjourn the review to await the outcome of the nomination application now that it has established Le Montage was approved as a standard business sponsor on 16 February 2018 for 5 years. Having regard to the fact that Ms Hassan’s Subclass 457 visa granted 10 March 2014 will cease on 10 March 2018, the impending replacement of the Subclass 457 visa scheme with a new Temporary Skills Shortage visa scheme in March 2018 as announced by the Prime Minister and the Minister for Immigration on 18 April 2017 and, further, the Tribunal has established approved sponsor Le Montage has an unblemished record as sponsor, the Tribunal considers it appropriate that weight be given in favour of not cancelling Ms Hassan’s visa.

    Conclusion

18. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded, on balance, that the evidence in favour of not cancelling Ms Hassan’s Subclass 457 visa outweighs that in favour of cancelling her visa.  For these reasons, the Tribunal has formed the view that this is an appropriate case to exercise its discretion and not cancel Ms Hassan’s Subclass 457 visa. 

    DECISION

19. 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.

20. The Tribunal has no jurisdiction with respect to the other applicants.

    Katie Malyon

    
    Member