KHAN (Migration)

[2017] AATA 1478

KHAN (Migration) [2017] AATA 1478 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Faisal KHAN

CASE NUMBER:  1704059

DIBP REFERENCE(S):  BCC2017/66074

MEMBER:Wan Shum

DATE:23 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2017 at 1:48pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – Requested withdrawal of s457 visa application – Not withdrawn by department – Visa granted – Cancelled for breach of condition 8107 – Declaration sought that s457 not validly granted – No power by tribunal to make such declaration

LEGISLATION

Migration Act 1958, ss 49(2), 116, 349

Migration Regulations 1994, Schedule 2, r 2.43(1)(kb), r 2.84(2)(b)(i), r 4.15, IMMI09/104, Condition 8107, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 had not complied with a condition on 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. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent. The applicant appeared before the Tribunal on 2 August 2017 to give evidence and present arguments. Mr Shuonan Zhao also attended on behalf of the representative.

4. 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

5. 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. 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.

6. The applicant applied for the Subclass 457 visa on 5 March 2015 based on his sponsorship and nomination by Oberix Group Pty Ltd, his employer at the time. He then sought to withdraw the application on 9 May 2015 by advising his employer by email requesting that the 457 application be cancelled as he wished to remain on his subclass 573 student visa. It appears the registered migration agent used by his employer, Florence Buegge-Borshoff (who was his own representative at the time as well), sent an email to ‘[email protected]”. In her email, the agent states that the applicant “wishes to withdraw his 457 visa application… [i]n addition, the nomination… and offer to work by his prospective employer… has been withdrawn and is also to be cancelled”. However, it does not appear that this email was actioned as the 457 visa was granted on 27 July 2015 and it would appear that the related nomination was not recorded as having been withdrawn by the sponsor and did not cease.

7. The applicant’s Subclass 457 visa was not cancelled until 28 February 2017. The reason given for cancellation was that the applicant had not been employed in a nominated position for more than 90 days and had breached condition 8107 which requires that, in circumstances where the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. Of relevance to the claimed circumstances in this case, the delegate refers in the decision record to the termination of the applicant’s employment with the nominating sponsor on 18 May 2015 not having been received by the Department prior to the grant of his visa.

8. On review, the applicant is seeking a declaration by the Tribunal that the Subclass 457 was not validly granted, that the decision to cancel the Subclass 457 was not valid and, further, that the consequences of the cancellation should not be imposed on the applicant. It was submitted that the Tribunal should exercise its discretion and powers to make these declarations or remit the matter back to the Department for processing and decision-making. However, the Tribunal does not have power to make declarations of the sought requested. Its review powers under Part 5 of the Act are triggered when an application is properly made for review of a Part 5-reviewable decision and are limited by the terms of s.349. The prescribed matters and permissible directions or recommendations for the purposes of the remittal power are set out in r.4.15 of the Regulations. It cannot remit the matter to the Department in this case as it is not a prescribed matter.

9. In respect of the validity of the visa grant, the material before the Tribunal confirms that the applicant had sought to withdraw the application for the visa before the grant. However, an issue arises as to whether the Department had constructive notice of the withdrawal. It appears that the Department was of the view that there was not constructive notice. It was submitted on the applicant’s behalf that there had been constructive notice by reference to: a copy of the email sent by Florence Buegge-Borshoff to ‘[email protected]”; an allegation made by Florence Buegge-Borshoff on 13 May 2015 to the Department regarding the applicant which included reference to the applicant having “emailed the employer and said he wanted to go back to being just a student and did not want a 457 visa” and file notes made by DIBP officers regarding the sequence of events. It is noted that copies of the correspondence between DIBP officers regarding the applicant’s Subclass 189 visa refers to the following: “on 9 May 2015, the department received a written request to withdraw the [applicant’s] 457 visa however the correspondence was not sent to the correct team (Brisbane 457 COE)”.

10. While there is some doubt as to whether withdrawal has affect if it is not before the actual delegate who is deciding the visa application, the Tribunal has considered the material before it regarding the withdrawal request and is of the view that it was an effective withdrawal. This is because an email was sent to an address that was the address specified under subparagraph 2.84(2)(b)(i) for which details of a specified event must be provided by an approved sponsor or former approved sponsor: Instrument IMMI09/104. This instrument was in force until January 2016, when a new instrument commenced. One of these events includes the requirement to notify the Department of the cessation, or expected cessation, of a primary sponsored person's employment. While the applicant was not at the time a ‘primary sponsored person’, the email address was clearly one by which it was possible to contact the Immigration department regarding standard business sponsorship matters. The Tribunal further notes that following the applicant’s own attempt to email the Department at this email address regarding the withdrawal of his visa application on 4 July 2016, the automated reply received by the applicant includes the following text ‘Your email has been received by the Sponsor Monitoring Unit of the Department of Immigration and Border Protection’. There is nothing before the Tribunal to indicate that the withdrawal was not in fact received.

11. While the case notes indicate that the correct team within the Department was not informed which resulted in the visa being granted, the information before the Tribunal indicates that the withdrawal was sent to an email address clearly relevant to business sponsorship matters.

12. In the circumstances, the Tribunal is of the view that the Department was notified of the withdrawal several weeks before the visa decision was made and considers that the applicant had withdrawn his application on 9 May 2015.

13. It follows that the visa should not have been granted as s.49(2) applied. In addition, as the employer had sought to withdraw the nomination in respect of the applicant, he would not have met a criterion for the grant of the visa. However, the decision to grant the visa is arguably valid although the decision would appear to have been the wrong one.[1] As the visa was granted it does appear that condition 8107 was breached.

    [1] Refer Division 3, Subdivision AC of the Act.

14. For these reasons, the Tribunal is satisfied that a ground for cancellation 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

15. 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’.

16. In this case, the applicant is seeking for the visa cancellation to be set aside because of the potential effect of this cancellation on any further visa grants. He maintains that he does not want the Subclass 457 visa, now or earlier. It was submitted that it is possible that, if the cancellation stands, his situation will trigger the risk factor in PIC 4013, having regard to r.2.43(1)(kb) which provides that a person is affected by a risk factor if a visa held by the person was cancelled under s.116 and the Minister is satisfied that the holder did not have a genuine intention to perform the occupation or the holder has ceased to have a genuine intention to perform that occupation. If there is no cancellation under s.116, then the risk factor will not be triggered.

17. While the possibility of a former visa holder being affected by a risk factor that may prevent him or her satisfying PIC 4013 for the grant of a future visa would not ordinarily be sufficient on its own, the Tribunal does note the unusual circumstances in this case. The applicant had attempted to withdraw his visa application, had not been aware of the visa grant until a later date and again attempted to have the visa cancelled in October 2015. At that time, it is arguable that he was not yet in breach of condition 8107. However, as there was likely a different ground of cancellation for the Subclass 457 visa that would have been relevant in October 2015, of greater significance to the applicant is that he would still have been holding a substantive visa if the Subclass 457 visa had not been granted at all. The information before the Tribunal is that his student visa would have ceased in early December 2015, had it not been for the grant of the Subclass 457 visa. In fact, it appears that the department (the correct area) were aware by 31 July 2015 at the latest that his visa had been granted despite his attempted withdrawal when the visa applicant’s former representative contacted the department after being notified of the visa grant.

18. The Tribunal accepts that the applicant never had any intention to work for that employer on or around the time he sought to withdraw the application in May 2015, and for that reason, it appears unfair that PIC 4013 may be triggered in terms of the holder not having a genuine intention to perform the occupation for a visa granted over two months later.

19. The representative has submitted that the Department’s cancellation of the visa was vexatious due to communications between the different areas of the department regarding his Subclass 189 visa application and the Subclass 457 areas. However, it appears that his Subclass 457 visa was not cancelled prior to the decision to refuse his Subclass 189 visa as, if it had been decided that the 189 visa should be granted, he may have been affected by the risk factor. The Tribunal does not consider that the Department’s decision not to cancel the 457 visa until the Subclass 189 visa application was decided is a reason for setting aside the cancellation.

20. It notes that the Subclass 189 visa was refused, and then affirmed by the Tribunal (differently constituted). The applicant has appealed the decision to the Federal Circuit Court and that matter is still pending. It is not clear to the Tribunal whether he will be successful or not in having the visa granted. Regardless of the ultimate outcome in that case, the Tribunal acknowledges that the delay until January 2017 to cancel the 457 visa has had a negative impact on the applicant in terms of his ability to work (due to the conditions imposed on that visa which effectively preclude him from working with anyone other than the related sponsor).

21. The effect of the Tribunal’s decision is that the cancellation of the Subclass 457 visa will be reversed. The applicant will again be the holder of a Subclass 457 visa. The applicant maintains that he does not want the Subclass 457 visa. While the Tribunal considers that the visa should not have been granted because the visa application had been withdrawn, it is of the view that it does not have power to make a declaration of the kind sought. The applicant may need to resolve the issue of being a Subclass 457 visa holder in another way.

    DECISION

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

    Wan Shum
    Member