Horschig (Migration)

[2022] AATA 2304

Horschig (Migration) [2022] AATA 2304 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Oliver Horschig
Ms Nathalie Heyer
Mr Tamu Heyer
Mr Neo Heyer

CASE NUMBER:  2103626

REPRESENTATIVE:  Kim Hunter

HOME AFFAIRS REFERENCE(S):          BCC2020/2376021

MEMBER:Alan McMurran

DATE:8 June 2022

PLACE OF DECISION:  Sydney

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 other applicants.

Statement made on 08 June 2022 at 5:45pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – sponsor cancelled or barred under s.140M – no response to s.359A invitation – consideration of discretion – sponsor no longer trading – COVID pandemic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 360

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 22 March 2021 for review of a decision dated 19 February 2021 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) of the Act on the basis that the approval of the applicant’s nominator as a standard business sponsor was cancelled by the Department on 23 September 2020. 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 other applicants’ visas were 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 those other visas self-executing on the cancellation of the first named applicant’s visa.[1]

   [1]  see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

4. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants’ visas.

5. The applicants were represented in relation to the review by solicitors, Hunter Flood Lawyers.

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

   Background

7. The primary applicant is a 54-year-old citizen of Germany. The second to fourth named applicants are members of the primary applicant’s family.

8. The applicant was successfully nominated for the occupation of Roof Plumber (ANZSCO 334115) by a standard business sponsor, Playfair Roofing Pty Limited (“the sponsor”). The applicant was granted a Subclass 457 temporary work visa on 10 May 2017 to work for the sponsor.

9. The sponsor’s sponsorship agreement was cancelled by the Department on 23 September 2020, and the applicant notified of this decision on 24 September 2020. On 4 February 2021, the applicant was given notice by the Department of intention to cancel his 457 visa.

10. The applicant was given some time by the Department to find a new approved sponsor in the period from 24 September 2020 until 19 February 2021, when the applicant’s visa was subsequently cancelled. The applicant had not responded to the Department’s notice, advising of its intention to do so.

11. The applicant sought review of the cancellation decision in the Tribunal, and on 27 May 2021, requested from the Tribunal a copy of the complete Department file for the applicant, which was duly provided.

12. Following constitution to a Tribunal Member, the Tribunal wrote to the applicant’s solicitor on 14 April 2022. The Tribunal’s natural justice letter under section 359A provided particulars of the cancellation of the sponsor’s agreement. The Tribunal letter invited the applicant to comment, informing the applicant that if the Tribunal relies upon the information in the letter, it may find there are grounds for cancellation of the visa. The applicant was requested to respond by 28 April 2022. The applicant was also invited to respond generally to the information and make submissions in support of the application under review as to whether the visa should be cancelled.

13. The Tribunal did not receive any response. On 3 May 2022, the Tribunal wrote to the applicant to advise that in the absence of the Tribunal’s requested response, due by 28 April 2022, the Tribunal would proceed to determine the matter on the material before it.

14. The applicant’s representative replied by email on 5 May 2022, apologising for the delayed reply (due to COVID) and requesting an extension of 7 business days to make further submissions. No further submissions were subsequently received either within the extended period or at all.

15. On 19 May 2022, the representative wrote to the Tribunal with instructions to request the Tribunal to make a decision on the papers, as the applicants intended to make a submission to the Minister for Ministerial Intervention.

16. Accordingly, and pursuant to section 360(2)(b) of the Act, the Tribunal has proceeded to finalise the review on the available information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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)(g). 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?

    s 116(1)(g) - prescribed ground

18. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant.

19. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(I)(iv) is relevant. That sub paragraph provides a ground for cancellation where “the sponsor has been cancelled or barred under section 140M of the Act”.

20. On the available information, from the Department file, the Tribunal is satisfied the Minister made a decision to cancel the sponsor under section 140M of the Act on 23 September 2020, because the sponsor was no longer trading.

21. The Tribunal finds that subsequently, on 4 February 2021, the applicant was advised by the Department of a Notice of Intention to Consider Cancellation of the applicant’s visa. The notice invited the applicant to respond. No response was received by the Department.

22. The Tribunal finds on this information that the sponsor has been cancelled under section 140M of the Act.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g)) 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

24. 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’.

25. Matters for consideration include relevant factors such as the purpose of the visa holder’s stay in Australia, any compelling need to remain in Australia, the extent of compliance with these conditions, the degree of any hardship caused as a result of cancellation, and the circumstances surrounding cancellation and whether those circumstances were beyond the visa holder’s control.

26. Other considerations include the visa holder’s behaviour towards the Department, consequential cancellations which apply in this instance to the other family member applicants; any mandatory legal consequences such as detention or removal, any international obligations including concerns about the best interest of children, whether the visa holder has strong family, business or other ties in Australia and any other relevant matters the Tribunal may wish to consider.

27. Drawing on the available information, the Tribunal concludes the purpose of the visa holder’s travel and stay in Australia was to enable him to work on a temporary business entry visa, Subclass 457. In the ordinary course, the applicant’s Subclass 457 temporary work visa would have expired on 10 May 2021, before it was cancelled on 19 February 2021. There is no information before the Tribunal and available concerning the applicant’s visa history of compliance, the applicant’s intentions, or the degree of any hardship (financial, psychological, emotional, or otherwise, which may flow from cancellation.

28. The Tribunal is conscious that it appears the cancellation of the sponsor occurred during the COVID pandemic and was not due to any factor within the applicant’s apparent control. Otherwise, the circumstances giving rise to the sponsor’s circumstance are not before the Tribunal. The Tribunal finds there is nothing before it to indicate anything adverse as to the past or present behaviour of the visa holder towards the Department.

29. The Tribunal is aware that the consequential cancellations include a 13-year-old and 5-year-old child. No information is before the Tribunal, however, concerning those children, their circumstances and whether that might be a relevant factor for consideration in the exercise of discretion. Furthermore, the Tribunal is not aware of any mandatory legal consequences such as detention or removal which would follow cancellation, provided the visa holder continues to comply with lawful directions from the Department and the conditions surrounding any mandatory departure.

30. The Tribunal has not been made aware of any international obligations, including non-refoulement, family unity, and best interests of the children, as a primary consideration, and which might be breached as a result of the cancellation. This is so, notwithstanding the invitation referred to above for the applicant to provide information to the Tribunal for consideration. The applicant lost the opportunity to appear for a hearing, where the Tribunal may have been able to discuss these discretionary considerations further, preferring instead that the Tribunal complete its decision ‘on the papers’.

31. There are no other relevant matters which the Tribunal considers might affect the decision whether to cancel in this instance.

32. The representative has stated that the applicant intends to make a request for Ministerial Intervention, but no submissions have been made for the Tribunal to consider in that regard.

33. Having considered the above and taking into account the history as recited in these reasons, and considering the circumstances as a whole, the Tribunal concludes that this is not a case where the Tribunal might set aside a decision already made to cancel the visa. The ground for cancellation has been made out, and there is no information before it which might reasonably assist the Tribunal to consider its discretion whether to cancel the visa.

34. Accordingly, the Tribunal finds that the visa should be cancelled.

    DECISION

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

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

    Alan McMurran
    Member