Lochan (Migration)

[2019] AATA 889

Lochan (Migration) [2019] AATA 889 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maya Alexis Lochan

CASE NUMBER:  1720241

HOME AFFAIRS REFERENCE(S):           BCC2017/2671351

MEMBER:Amanda Mendes Da Costa

DATE:5 February 2019

PLACE OF DECISION:  Melbourne

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 05 February 2019 at 12:57pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – circumstances giving rise to ground for cancellation – business restructure – position made redundant – steps to secure alternative sponsorship – subject of a new approved nomination – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 of her visa, namely that if she ceased employment, the period during which she ceased employment did not exceed 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.

3. On consideration of the information in both the Department and Tribunal’s files, the Tribunal has determined that a hearing in the matter is not necessary and that a decision can be made on the basis of the available documentation.

4. The applicant was represented in relation to the review by her 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 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment – the period in which the holder ceases employment must not exceed 90 consecutive days.

8. The Tribunal notes that the standard business sponsor who originally nominated the applicant for the Subclass 457 visa was Emma Asiapac Pty Ltd (the sponsor).

9. On 10 March 2017 the sponsor advised the Department in writing that the applicant had ceased employment with the sponsor on 28 February 2017.

10. Neither the applicant nor the sponsor informed the Department that the applicant had returned to work for the sponsor or an associated entity of the sponsor within 90 consecutive days of ceasing employment.

11. The applicant conceded the grounds for cancellation of her visa under s.116(1)(b) existed as outlined in the Notice of Intention to Consider Cancellation (NOICC), as more than 90 days had expired after her employment with her sponsor ceased and she remained in breach of a condition 8107 of her visa.

12. The applicant commenced working with the sponsor, which is a technology company with its headquarters in Nashville, Tennessee on 9 June 2015.  At that stage the sponsor had recently opened an office in Melbourne, Victoria.

13. On 9 December 2015 the applicant was granted a Subclass 457 visa for a period of four year on the basis of an approved sponsorship and nomination application for the occupation of ICT Customer Support Officer.

14. In January 2017 the sponsor restructured its business and as part of that process, decided to close its Melbourne office.  Consequently, on 28 February 2017 the applicant was notified by the sponsor that her position had been made redundant. The applicant immediately began making arrangements to find a new sponsor in order to comply with the conditions of her visa.

15. On 4 March 2017 the applicant was introduced to Stripe, a financial technology start-up, as a potential employee.  On 7 March 2017 the applicant was interviewed by management at Stripe and subsequently was interviewed again by phone on 21 March 2017.  On 4 April 2017 the applicant completed a written project as part of the selection process for the position. The applicant received positive feedback from the company and was invited to the next round of the selection process which consisted of a series of four interviews at the Stripe office in Melbourne on 18 April 2017.

16. On 8 May 2017, the applicant again received positive feedback from Stripe and was invited to attend a final round interview at its office in San Francisco, USA. The applicant was unable to travel during due to her Visa status and completed multiple interviews with the company via Skype on 18 May 2017 and 23 May 2017.

17. Throughout the recruitment process with Stripe, the applicant informed the company about the 90 day timeframe regarding her visa and was repeatedly assured that this would not be a problem as Stripe was already an approved standard business sponsor.

18. On 26 May 2017, four days before the 90 day period under condition 8107 (as it then was) was due to cease, the applicant was notified that she had not been successful with her application for employment with Stripe.

19. On 28 May 2017 the applicant applied for a role as an ICT Customer Support Officer with Southern Payment Systems Pty Ltd (SPS). The 90 day period in accordance with condition 8107 ceased on 29 May 2017.  On 30 May 2017 the applicant was interviewed by SPS and following the interview, wrote to the Department advising that she was aware the 90 day period had ceased and detailed her attempts to find a new sponsor.

20. On 2 June 2017 the applicant had a second round interview with SPS. On that date, following the interview, the applicant notified the Department that she had located a new sponsor and that they were in the process of applying to be an approved sponsor and making a nomination application.

21. On 5 June 2017 the applicant was offered a position with SPS prior to limited and the company lodged their standard business sponsorship sponsor and nomination application that day.

22. On 21 June 2017 SPS was notified that the sponsorship application have been refused due to insufficient evidence regarding the training benchmarks. SPS made a subsequent application for sponsorship that included further information regarding the training benchmarks. On 9 August 2017 the applicant received the NOICC. On 15 August 2017 the applicant responded to the NOICC detailing the extensive efforts she had undertaken to find a new sponsor and the communication she had had with the Department during that period.

23. On 28 August 2017 the applicant’s subclass 457 Visa was cancelled.

24. On 1 October 2017 SPS was notified that its nomination application had been refused by the Department as it was not satisfied that regulation 2.72 of the Migration Regulations 1994  had been satisfied, namely that the terms and conditions of the applicant’s employment were no more or less favourable than that of an equivalent Australian worker.

25. SPS made a subsequent application for approval as a standard business sponsor, which was granted on 20 November 2017.

26. On 29 December 2017 the applicant was granted a Bridging visa E without the condition 8101 (no work) attached.

27. On 7 February 2018 the applicant commenced working with SPS in a full-time position as an ICT Customer Support Officer and remains in that position. On 4 February 2019 the Tribunal approved the nomination application of SPS for the position of ICT Customer Support Officer, for the applicant.

28. Based on the evidence before it, 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

29. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

30. The applicant arrived in Australia in May 2015 as the holder of a Work and Holiday (Subclass 462) visa.  The purpose of the applicant’s stay in Australia was to work for an approved business sponsor in an approved nomination occupation as part of the Subclass 457 visa program.  If not for cancellation, her visa would be valid until December 2019.

31. The Tribunal acknowledges that the applicant is currently working for an approved business sponsor whose nomination application has been approved by this Tribunal.  Accordingly, the Tribunal finds that the applicant remains able to fulfil the purpose of her travel and stay in Australia.

    The extent of compliance with visa conditions

32. Apart from the applicant’s non-compliance with condition 8107 of her visa, there are no other known instances of non-compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33. The Tribunal accepts that the applicant has been living in Australia since May 2015 and has entered into a de facto relationship during this time, with an Australian citizen. If required to leave Australia and return to the USA this would have a detrimental effect on her relationship.

34. The Tribunal also accepts that if the visa is cancelled the applicant would be required to find further employment on her return to the USA and would experience difficulties in re-establishing her professional and personal life after nearly four years away.

    Circumstances in which the ground of cancellation arose

35. The Tribunal accepts that the cancellation of the applicant’s visa occurred in circumstances where the sponsor decided to restructure its business, resulting in the closure of the Australian branch of the business.  These circumstances were beyond the control of the applicant and not due to any poor performance of her duties.  The Tribunal is further satisfied that the applicant is now the subject of an approved nomination for the position of ICT Customer Support Officer with Southern Payment Systems Pty Ltd.

    Past and present behaviour of the visa holder towards the Department

36. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal accepts that the applicant has kept the Department informed about the progress of her attempts to find a new sponsor and responded promptly to the NOICC.

    Whether there would be consequential cancellations under s.140

37. There are no persons whose visa would be subject to consequential cancellation under s.140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

38. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that she will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

39. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation of the applicant’s visa.

40. Considering the circumstances as a whole and particularly the current approved nomination for the applicant, the Tribunal concludes that the visa should not  be cancelled

    DECISION

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

    Amanda Mendes Da Costa
    Member