Boos (Migration)

[2019] AATA 1607

Boos (Migration) [2019] AATA 1607 (14 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Markus Boos
Ms Leslie Jeanette Celis  

CASE NUMBER:  1830851

DIBP REFERENCE(S):  BCC2018/4039780

MEMBER:Jennifer Cripps Watts

DATE OF DECISION:  14 January 2019

DATE CORRIGENDUM

SIGNED:17 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision: The ‘Date of Decision’ on the covering page should read 14 January 2019.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Markus Boos
Ms Leslie Jeanette Celis

CASE NUMBER:  1830851

HOME AFFAIRS REFERENCE(S):           BCC2018/4039780

MEMBER:Jennifer Cripps Watts

DATE:14 January 2018

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 second named applicant.

Statement made on 14 January 2019 at 9:34am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Senior Layout Artist – failed to commence employment with new sponsor within 90 days – migration agent failed to lodge nomination application – non-compliance beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107

CASES
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 18 October 2018 made by a delegate of the Minister for Home Affairs 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) of the Act on the basis that the applicant had not complied with a condition of the visa, namely condition 8107(3) which requires essentially that if he ceases employment with the nominating business, the applicant must find a new nomination within 90 days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled, having regard to discretionary matters which may weigh in favour of not cancelling it.

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

5. 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

6. 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?

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) is attached to the applicant’s visa. This condition requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

8. The applicant was granted a Subclass 457 visa on 22 December 2015 on the basis of an approved nomination by a standard business sponsor, Animal Logic Pty Ltd (Animal Logic).  He ceased working for Animal Logic on 22 December 2017.  These matters are not in dispute.

9. The applicant obtained employment as a Senior Layout Artist with A.P. Facilities Ltd trading as, variously, Iloura or Deluxe Australia (Deluxe).  He commenced working there on 5 February 2018 and had three contract renewals or extensions through to 28 September 2018.  No nomination application was lodged by or granted to Deluxe at any time relating to the applicant working in the specified occupation.

10. None of the above matters are in dispute.  The applicant has provided this information and has stated clearly that he understands that he was in breach of the condition and that the ground for cancellation existed.

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 visa should be cancelled.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. The applicant ceased employment with Animal Logic on 22 December 2018 and commenced employment, in the specified occupation, with Deluxe on 5 February 2018, about 45 days after he ceased employment with his former sponsor, Animal Logic.  Deluxe represented to the applicant that they would sponsor him.  He provided the relevant person at Deluxe with all his paperwork in support of the application and remained employed at Deluxe until 28 September 2018 under the impression that the sponsorship application was lodged and approved. 

14. In September 2018, the applicant says he discovered Deluxe had not applied for or had approved his nomination relating to the applicant’s 457 visa when he moved there from Animal Logic in December 2107. 

15. The applicant says he was surprised and disappointed when he learned of the sponsorship problem with Deluxe, because a number of other nominations had been approved for people in a similar situation to him, that is, people who worked for Animal Logic and transferred over to Deluxe around the same time, around December 2017.  A copy of an email on the Tribunal file from the former migration agent for Deluxe confirms, as the applicant claims, that there were other nomination applications lodged and that the applicant’s nomination by Deluxe was overlooked by them and not lodged.

16. The Tribunal has checked Departmental records and is satisfied that Deluxe was an approved Standard Business Sponsor (SBS) at the relevant times.  They had an SBS approved for three years from 2015 to 2018 and then a subsequent SBS approved from June 2018 for another five years, to 2 June 2023.  Departmental records show that they employ a significant number of people on 457 visas and did so around the time the applicant worked for them.

17. The applicant attempted to obtain information about the other approved nominations to show that it was reasonable for him to think that his nomination was on foot and approval was pending (if not granted) in the first half of 2018.  There seemed to be some initial co-operation from an employee at Deluxe.  However, the matter appears to have been referred to Deluxe’s solicitor and migration agent who informed the applicant, understandably in the circumstances, that he should cease making any requests for information from his former employer, citing confidentiality issues. 

18. The applicant informed the Tribunal that a number of other visa holders who worked for Animal Logic also transferred over to Deluxe around the same time he did.  In the circumstances, as the applicant was not able to obtain the information himself, the Tribunal made its own inquiries as to the number of other nominations approved for Deluxe from December 2017 to March 2018.  A search of the ICSE system was conducted and there appear to have been 32 approved nominations for 457 visas visa holders working in various occupations  during that period. 

19. The Tribunal’s view is that the applicant did everything in his power to progress the new nomination with Deluxe and that it was reasonable for him to think that Deluxe was taking care of the application through its migration agent.   The Tribunal accepts that the applicant was told that his nomination paperwork had been provided to the migration agent who subsequently appears to have overlooked it.  Deluxe renewed the applicant’s employment contract three times during 2018 which indicates to the Tribunal that they were happy with him working in the specified occupation.  It is reasonable, on the evidence provided, for the Tribunal to conclude, which it does, that Deluxe also thought the applicant’s nomination application was lodged and either approved or pending during the period of his employment, relevantly within the 90 day period from 22 December 2017.

20. Due to the applicant’s nomination with Deluxe not being lodged and/or approved (and there is nothing, in the view of the Tribunal, to think it would not have been approved), the applicant’s last sponsorship by Animal Logic ceased in December 2017 and the applicant was in breach of condition 8107.  On 11 September 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation of his visa, he responded within time, but the delegate, taking all relevant matters into consideration, did not find in the applicant’s favour and the visa was cancelled.

21. The applicant has now been offered re-employment with his original sponsor, Animal Logic.  He works in the animation industry where it is common for employers or contractors to move between companies depending on demand and film schedules.  Animal Logic are keen to lodge another nomination application for him because they wish to retain his skills.  The applicant has provided the Tribunal with a letter, signed and dated 8 January 2019 by Matt Jones, Head of Artist Management, Animal Logic which goes into detail about the company’s desire to have the applicant working there.

    Purpose of the visa holder’s travel and stay in Australia

22. The purpose of the applicant’s travel and stay is to work for an approved sponsor in the nominated occupation while holding a Subclass 457 visa.  The Tribunal is satisfied that the applicant has, or has made proper attempts on the information that was provided to him, to work in the nominated occupation during his time onshore.  Positive weight is given to this in his favour.

    Extent of compliance with visa conditions

23. The Tribunal, on the evidence, is satisfied that the applicant has complied with his visa conditions and that the non-compliance with condition 8107 was out of his control.  There is no evidence before the Tribunal that indicates the applicant has been non-compliant with any other visa conditions.  Positive weight is given to these matters in the applicant’s favour.

    Degree of hardship that may be caused

24. The Tribunal has made findings and given detailed reasons why that the applicant’s non-compliance with condition 8107 was beyond his control and that he was not aware he was non-compliant until around nine months after he ceased employment with his previous sponsor, Animal Logic (in December 2017).  He relied on the nominating company Deluxe to provide his paperwork to the migration agent they were using at the time, which the Tribunal is satisfied Deluxe did.  The migration agent Deluxe provided the applicant’s paperwork to did not lodge the nomination application identifying the applicant, although they did lodge other applications for other 457 visa holders in a similar situations at around the same time.

25. The Tribunal has considered hardship that may be caused to the applicant if the visa is cancelled.  He would be financially disadvantaged and may suffer a loss of work and reputation in his career, in circumstances where he essentially appears to have done nothing wrong.  The Tribunal gives positive weight to the applicant with regard to these matters.

    Circumstances in which the ground of cancellation arose

26. This has been discussed at length above.  The circumstances in which the ground of cancellation arose included the applicant moving from one employer to another, in the same specified occupation.  Both employers, Animal Logic and Deluxe, are approved standard business sponsors.  As stated above, the Tribunal has reached a view that the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  Departmental guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.  The Tribunal gives positive weight to these matters in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

27. There is no information or evidence before the Tribunal that causes it to be concerned that the applicant has not been co-operative and engaged with the Department.  Positive weight is given to him for this.

    Consequential cancellations under s.140 of the Act

28. The applicant’s partner, Leslie Jeanette Celis, is included as a dependant on his Subclass 457 visa.  If the applicant’s visa is cancelled, Ms Celis’ visa would consequentially be cancelled.  The Tribunal gives this matter limited weight.

    Mandatory legal consequences

29. If his visa was cancelled, the applicant would become an unlawful noncitizen and would be required to depart Australia.  He may be affected by s.48 of the Act and this may affect his ability to apply for visas in the future.  The Tribunal’s view is that in all the circumstances there is nothing to be gained by cancelling the visa and placing this onerous burden on the applicant which would have an unfair detrimental impact on him and possibly his partner.

    Other relevant matters

30. The Tribunal gives significant weight to the letter from Animal Logic dated 8 January 2018 that indicates they hold the applicant in high regard for his skills and presence in the workplace and that they wish to lodge a nomination application identifying the applicant in the specified occupation for which his visa was originally granted in 2015.

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

32. As the evidence was overwhelmingly in favour of not cancelling the applicant’s visa, the Tribunal considered, in the interests of being fair, just, economical, informal and quick, to make a decision on the papers. 

    DECISION

33. 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.

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

    Jennifer Cripps Watts
    Member