Maharjan (Migration)

[2020] AATA 3408

Maharjan (Migration) [2020] AATA 3408 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rojesh Maharjan

CASE NUMBER:  1930357

HOME AFFAIRS REFERENCE(S):          BCC2019/1279661

MEMBER:Bridget Cullen

DATE:29 June 2020

PLACE OF DECISION:  Brisbane

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 29 June 2020 at 3:48pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with the sponsor over 90 days – sponsor accidentally de-registered – employment continued – ASIC record rectified – decision under review set aside          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 2019 made by a delegate of the Minister for Home Affairs 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 breached condition 8107(3)(b) attached to the visa, because he ceased employment with the sponsor for a period exceeding 90 consecutive 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. The Tribunal did not hold a hearing, as it was able to make a favourable decision to the applicant, on the basis of the information before the Tribunal.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Wei Lik Choo (MARN 1805412) of Cornerstone Law Offices.

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?

   s.116(1)(b) - non-compliance with conditions

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. Condition 8107 requires that the review applicant work only in the occupation or position in relation to which the visa was granted. Condition 8107(3)(b) states that if the visa holder ceases employment, the period must not exceed 90 consecutive days.

8. The standard business sponsor for the review applicant’s most recently approved nomination is Swagmans Bakery Pty Ltd (ACN 123 961 811). The delegate formed the view that the review applicant had ceased his employment with the sponsor, following Swagmans Bakery Pty Ltd being deregistered on 15 July 2018.

9. Information before the delegate indicated that, as at 28 May 2019, the applicant still worked for the bakery, and the bakery had been accidentally deregistered, but was in the process of rectifying that. The delegate did not accept this information, as the ASIC process for re-registration had not yet been finalised by ASIC.

10. The Tribunal has obtained a full ASIC extract for Swagmans Bakery Pty Ltd as at 29 June 2020. That reveals that the company has been continuously registered since 15 February 2007, with a review date of 15 February 2021. 

11. In view of the current ASIC information before the Tribunal, there is no basis to find that the review applicant ceased employment with his sponsor in contravention of Condition 8107.

12. The Tribunal finds that the review applicant did not breach Condition 8107.

13. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Bridget Cullen
    Member