Mariano (Migration)

[2021] AATA 1314

Mariano (Migration) [2021] AATA 1314 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robin Mariano

CASE NUMBER:  2010129

HOME AFFAIRS REFERENCE(S):          BCC2019/6150530

MEMBER:Michael Cooke

DATE:24 February 2021

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 24 February 2021 at 9:43am

CATCHWORDS
MIGRATION– cancellation – Temporary Business Entry (Class UC) visa – Subclass 457– applicant did not complied with condition 8107(3)(b) – visa holder’s employment with sponsor ceased – breach of the conditions were beyond applicant’s control – sponsor ceased operating­­­– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 June 2020 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) on the basis that the applicant did not complied with condition 8107(3)(b) because the period during which he ceased employment has exceeded 60 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 applicant appeared before the Tribunal on 8 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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. 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

6. 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) attached to the applicant’s visa is pertinent to the case. This condition requires that if the visa holder ceases employment — the period during which the visa holder ceases employment must not exceed 60 consecutive days.

7. The applicant has accepted that the relevant condition has been breached but through no fault of his own.

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

9. 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’.

   Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

   ·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.

10. The applicant was granted the Subclass 457 visa for the purpose of being able to work in Australia in a skilled occupation which could not be filled from within the Australian workforce. The standard business sponsor who nominated him in the most recently approved nomination for the visa is Lay Straight Bricklaying Pty Ltd (the sponsor) whose nomination was approved for him to work for them in the occupation of Bricklayer.

11. The Department received written notification from the sponsor, Lay Straight Bricklaying Pty Ltd to advise the visa holder’s employment with them ceased effective 29 November 2019. Therefore, the purpose for which the visa was granted to him ended on 28 January 2020 which is 60 consecutive days after the visa holder ceased employment with the sponsor.

12. The applicant has informed in oral evidence that Lay Straight Bricklaying Pty Ltd has ceased business. The applicant has claimed he is currently working and his employer (an approved sponsor) has indicated to their Tribunal that they are very keen to sponsor him for a new visa.

13. The Tribunal gives this consideration (in view of the additional information) significant weight against cancellation.

    ·the extent of compliance with visa conditions

14. The applicant did not comply with condition 8107(3)(b) of his Subclass 457 visa by virtue of having ceased employment with the sponsor more than 60 consecutive days. He has been granted a Bridging visa E with work rights and there is no other evidence of any non-compliance.

15. The Tribunal gives this consideration some positive weight against cancellation.

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

16. In oral evidence the applicant outlines the significant financial hardship that would happen to his extended family were the cancellation to be affirmed. He is a person of Filipino nationality who is trying to improve the fortunes of his Philippines-based family through hard work in Australia. This includes his parents – he informed. He has also separated from his family by the COVID crisis and has not been able to visit them for some time. This has been an added psychological hardship for him.

17. The Tribunal gives this consideration (in view of the additional information) maximum weight against cancellation.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The 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’.

18. It appears from the oral evidence provided that the circumstances in which the ground for cancellation arose were ‘beyond the visa holder’s control’. The applicant informs they were brought together in a site meeting and told the company was closing and they had 60 days to find a new sponsor.

19. The Tribunal gives this consideration (in view of the additional information) maximum weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

20. The Tribunal is unaware of any adverse information regarding past and present behaviour of the visa holder towards the Department

21. The Tribunal gives this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s.140

22. Not applicable.

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

23. The applicant would (in the event of affirmation of the cancellation) be subject to section 48 of the Act which may prevent him from applying for certain visas while in Australia. The applicant may not be permitted to work in Australia following a visa cancellation and may be held in immigration detention until his removal from Australia.

24. As such, the applicant will become an unlawful non-citizen and may be detained under section 189 and removed from Australia under section 198 of the Act if he does not resolve his immigration status or voluntarily depart Australia, as he would no longer hold a valid visa. However, he may be eligible to apply for a Bridging E visa to enable him to remain in Australia temporarily until he is able to depart Australia. Cancellation of the visa under these grounds will NOT incur any penalty under Public Interest Criterion 4013, which would prevent the applicant from applying from overseas for a new visa once he has established his eligibility for one. Therefore, if he does intend to return to Australia in the future, he does not need to retain the visa in order to do so, he can apply for a new visa in line with his new purpose for returning to Australia.

25. The Tribunal gives this consideration a little weight against cancelling the applicant’s visa.

    ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

26. The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC), and the International Covenant on Civil and Political Rights (ICCPR).

27. According to Departmental records there is no information the applicant has a parental or other close relationship with a child who is now in Australia and under 18 years of age.

28. The applicant is a citizen of Philippines and has had not applied for protection or indicated he would face harm if he returned to his home country.

29. There is no information Australia would be in breach of its international obligations to the applicant, including the above international agreements, if the Subclass 457 visa were cancelled. The circumstances of this case are not such that they would engage Australia’s international obligations.

30. The Tribunal gives this consideration no weight.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

31. Not applicable.

    ·any other relevant matters

32. The applicant lost his employment through no fault of his own. With the need to maintain his family in the Philippines he set about finding employment and a new sponsor willing to assist him to procure a new visa. He has succeeded in this mission and has provided the Tribunal with suitable evidence of this.

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

    DECISION

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

    Michael Cooke
    Senior Member