Noel Da Silva (Migration)

[2017] AATA 2455

Noel Da Silva (Migration) [2017] AATA 2455 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Giane Noel Da Silva

CASE NUMBER:  1704232

DIBP REFERENCE(S):  BCC2017/199813

MEMBER:John Cipolla

DATE:5 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 05 October 2017 at 11:11am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Employer’s sponsorship cancelled or barred – No new sponsor – Applicant resided in Australia for 10 years

LEGISLATION

Migration Act 1958, ss 116, 140

Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 March 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)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant. The Departmental decision record indicates that the prescribed ground was as follows. The applicant held a Subclass 457 visa as a sponsored person and the standard business sponsor who had sponsored the applicant Excel Render Pty Ltd were the subject of a sponsorship cancellation under s.140M if the Migration Act. 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 was represented in relation to the review by her registered migration agent.

4. The applicant lodged an application for review with the Tribunal on 9 March 2017. The applicant was invited to attend the hearing of the Tribunal scheduled for 25 September 2017. The applicant contacted the Tribunal on 31 July 2017 to advise that she had not been able to find a new sponsor and that she would not be available for the scheduled hearing on the applicant sought a postponement of the hearing. The Tribunal in response agreed to the cancellation of the hearing at the applicant’s request and invited the applicant through her representative to provide information regarding evidence of a new nomination.

5. On 14 September 2017 Tribunal received an email from the applicant’s representative seeking further time to clarify some “general aspects” of the applicant’s case.

6. On 18 September 2017 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to certain information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason for affirming the decision under review.

7. The Tribunal in its letter noted that the applicant’s Subclass 457 visa had been cancelled under Section 116 of the Migration Act by the Department of Immigration on 3 March 2017. The Tribunal noted that the applicant’s visa had been cancelled on the basis that the business that had sponsored the applicant under her previously held Subclass 457 visa, Excel Render Pty Ltd, had their sponsorship barred/cancelled under s.140 of the Migration Act which took effect from 17 January 2017.

8. The Tribunal in its letter noted that the grant of a Subclass 457 visa was contingent on an applicant being the subject of a nomination of an occupation which had been approved under s.140GB of the Migration Act and that the nomination had been made by a person who was a standard business sponsor at the time the nomination was approved and the approval of the nomination had not ceased.

9. The Tribunal noted that the evidence before it indicated that since the cancellation of the applicant’s visa on 3 March 2017 the applicant had not been the subject of a nomination of an occupation which had been approved under the Migration Act. The Tribunal in its letter noted that this information was relevant to the review because on 31 July 2017 the applicant advised a Tribunal registry officer that she was unable to find a new sponsor. The Tribunal noted that there was no current evidence before it that the applicant had managed to find a new sponsoring business. The Tribunal noted that this evidence could lead the Tribunal to affirm the decision under review on the basis that the applicant was not the subject of a nomination of an occupation which had been approved under s.140GB of the Migration Act and that the nomination had been made by a person who is a standard business sponsor at the time the nomination was approved and the approval of the nomination had not ceased.

10. The applicant was required to provide a response to the Tribunal’s letter by 3 October 2017. As at 5 October 2017 no response has been forthcoming and the Tribunal is able to proceed to decision on the basis of the evidence before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 grounds 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?

13. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(iv) is relevant.

14. The evidence before the Tribunal indicates that the standard business sponsor, who had nominated the applicant for a Subclass 457 visa Excel Render Pty Ltd had their sponsorship barred or cancelled under s.140M of the Migration Act. There is no evidence before the Tribunal to indicate that a new sponsorship agreement has been approved.

15. For these reasons, the Tribunal is satisfied that the grounds for cancellation in s.116(1)(g) exist.

16. 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

17. 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’.

18. The Tribunal has had regard to the relevant discretionary factors, including Departmental guidelines and matters that had been raised by the applicant.

19. The evidence before the Tribunal indicates that the applicant was granted a Subclass 457 visa for the sole purpose of working for an approved sponsor in a skilled occupation, and in this case the applicant was sponsored by Excel Render Pty Ltd who are the subject of  sponsorship bar/cancellation effective 16 January 2017.

20. The evidence before the Tribunal indicates that the applicants standard business sponsor Excel Render Pty Ltd had their sponsorship cancelled/barred on 16 January 2017. There is no evidence before the Tribunal to indicate that a new sponsorship agreement pertaining to the applicant has been approved and the evidence indicates that since 16 January 2017 the applicant has not been the subject of a nomination of an occupation that has been approved under the Migration Act.

21. In evidence provided to the Department of Immigration in response to the Notice of Intention to Consider Cancellation of her Subclass 457 visa the applicant stated that she had resided in Australia for a period of 10 years and had an established life in this country. However the Tribunal notes that the grant of a Subclass 457 visa enables an applicant to temporarily reside in Australia and does not guarantee a pathway to permanent residence.

22. The Tribunal notes that the grounds in which the cancellation arose was based on the fact that the applicant ceased working for her sponsor Excel Render Pty Ltd as the sponsoring business was the subject of a sponsorship bar/cancellation with effect from 16 January 2017.

23. There is no evidence that the applicant has not been cooperative in her dealings with the Department.

24. The evidence before the Tribunal indicates that there are no persons whose visas would, or may be cancelled under s.140 of the Migration Act.

25. There is no evidence before the Tribunal that indicates that Australia would be in breach of its international obligations as a result of the cancellation of the applicant’s visa.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    John Cipolla
    Senior Member