POWER (Migration)

POWER (Migration) [2018] AATA 256 (13 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Daniel Power
CASE NUMBER:  1709996
DIBP REFERENCE(S):  BCC2017/1019671
MEMBER:Hugh Sanderson
DATE:13 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 13 February 2018 at 1:00pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – Member of the family unit – Relationship breakdown – Department contacted the applicant – Discretionary factors – Family members in Australia – Employer may offer sponsorship for a work visa
LEGISLATION
Migration Act 1958, s 116
Migration Regulations , 1994
CASES
MIMA v Zhang (1999) 84
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 May 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).
The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was no longer in a relationship with Ms Van Waelscappel who was the primary applicant for a Subclass 457 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.
Background
The applicant is a citizen of the United Kingdom and is currently 31 years old. He was granted a Subclass 457 (Temporary Work (Skilled)) visa on 14 March 2016. The basis of the grant of that visa was that he was the de facto partner and member of the family unit of Ms Van Waelscappel who had met the primary criteria for the grant of the visa.
The Department wrote to the applicant on 19 April 2017 with a Notice of Intention to Consider Cancellation on the basis that it appeared that he was no longer in a relationship with Ms Van Waelscappel and therefore the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists.
The applicant responded to the Notice on 23 April 2017. He made various submissions as to why the visa should not be cancelled. This included the following:
·The applicant’s partner had returned home and said she wanted an ‘open relationship’ as she wanted to see other people while still living with him which was unacceptable to the applicant.;
·As the applicant would not accept an ‘open relationship’ their relationship had come to an end which had caused him significant financial hardship;
·The applicant’s parents are currently in Australia for 12 months helping the applicant’s sister who has had her first baby in May 2016 and she has permanent residence and his parents were hoping to be able to settle in Australia;
·The applicant has studied carpentry and has been working and paying tax whilst in Australia;
·The applicant loves Australia and wants nothing more than to remain living here and be close to his sister who he has a close relationship with;
·The applicant wants to continue his studies in carpentry to be able to apply for a visa to live in Australia;
·The applicant has considered other visa options such as moving to Byron Bay and working in regional Australia; and
·It was through no fault of his own that his relationship with Ms Van Waelscappel came to an end.
The delegate who considered the application found that as the applicant was no longer in a relationship with Ms Van Waelscappel the circumstances which permitted the grant of the Subclass 457 visa no longer existed and as such the visa could be cancelled. Considering the discretionary factors, the delegate noted the following:
·Although the applicant may have come to Australia with the hope of being able to live here, this does not provide a reason to not cancel the visa;
·There is no information that the applicant has not complied with his visa while in Australia;
·There may be some hardship suffered by the applicant as claimed, however he will have sufficient time to put his affairs in order to be able to leave Australia;
·The reason for the applicant no longer meeting the criteria for the grant of the visa is that his relationship with the primary visa applicant has come to an end, which may have been of no fault of his own;
·There is no information that the applicant’s past and present behaviour towards the Department has not been appropriate;
·There is no other person who will be adversely affected by the cancellation of the applicant’s visa;
·The fact that the applicant wishes to remain in Australia so that his parents would then meet the balance of family test is not a relevant consideration when assessing whether the applicant’s visa should be cancelled;
·There is no information that the applicant would not be able to return to the United Kingdom and maintain his life there; and
·If the applicant met the criteria for an appropriate visa, he would still be able to apply for that visa offshore.
Taking all these matters into account, the delegate was satisfied the grounds for cancelling the visa outweighed the grounds for not counselling the visa and accordingly made a decision to cancel the visa.
Information to the Tribunal
The applicant provided medical certificates and other documents which indicated he was suffering from anxiety, panic and depression. He provided an email from Jay Bautista from Qualify Me! stating that the applicant had enrolled in a course to get a Certificate III in Carpentry with Train N Trade and had submitted his full portfolio of evidence.
Submission were provided by the applicant’s agent claiming the following:
·Since the cancellation, the applicant has become qualified as a carpenter and is awaiting the completion letters and licence to work as a carpenter;
·The applicant is currently employed in construction and may be offered a sponsorship for a visa;
·The applicant has suffered greatly from actions outside his control, he is suffering from depression and anxiety and is receiving treatment for this;
·The applicant’s family are now living in Australia and he wished to remain with them;
·The applicant has always worked hard to be able to remain in Australia and has a large group of friends and connections here;
·The circumstances for which the grounds for cancellation arose outside the control of the applicant;
·There is a skill shortage of carpenters in Australia and the applicant would be able to help fill this gap; and
·If the cancellation is affirmed, the applicant would be subject to a bar for further onshore applications.
The applicant appeared before the Tribunal on 10 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his parents and his sister. The applicant was represented in relation to the review by his registered migration agent.
The applicant said that he had last lived with Ms Van Waelscappel in about February 2017 and had little contact with her since then. He acknowledged that he did not have a continuing de facto relationship with her.
The applicant said that he ceased working as a restaurant manager in January 2016 and then decided to work as an apprentice carpenter and obtain the skills for that trade. He then applied for the 457 visa on the basis of being a member of the family unit of his then partner. Since January 2016 he has continued working as an apprentice carpenter and has completed a course to obtain a Certificate III in Carpentry. He has been working full-time as a carpenter between 45 and 55 hours per week.
The applicant said that his sister arrived in Australia shortly before he first arrived after her then husband was granted a Skilled Migrant visa. He said that her relationship with her husband ended about 12 months after she arrived in Australia. She is now in a relationship with an Australian citizen and they have a child together.
The applicant said that his parents are currently in Australia on a visitor visa. This has recently been extended until November 2018. He said that prior to their arrival in Australia they lived in Cambridgeshire. He said that they sold their home prior to leaving the United Kingdom. His parents are retired.
The applicant said that he had a brother who lived in Surrey. He worked in the construction industry. He is married with two children. They keep in touch, but both are very busy so the contact is not regular.
The applicant said that he obtained a Bachelor of Arts (with Honours) in Music Production. He said that he was working as an intern at music studios after he graduated, but did not earn much income from this. He said that he worked for 10 years in various bars in the London area.
The applicant said that after his relationship with his former partner ended it was she who advised the Department of the end of that relationship. He said that he did not contact the Department because he believed that as he was on her visa it was her responsibility to contact the Department about any change of circumstances. The applicant said that since his relationship with his partner ended he had remained single. He was currently living in an apartment in Tamarama.
The applicant said that he first saw a doctor about suffering from anxiety and depression in Australia about the time the Department issued their decision cancelling his visa. He said that he was prescribed medication, but after taking the medication for a week he decided not to use it any longer. He next saw a doctor on 3 January 2018. He could not explain why the referral from his doctor dated 3 January 2018 indicated that he had no past history in respect of any condition and was not on any current medication. The applicant said that he had consulted a doctor in the United Kingdom about six years ago in relation to depression. He confirmed that throughout the time since he separated from his partner he had been working, studying and had found accommodation for himself over that period.
The applicant was unable to say what he would do if his visa were cancelled and he were required to return to the United Kingdom. He said that if his visa was not cancelled, he would continue to work as a carpenter and would apply for a visa to remain in Australia based on his work as a carpenter. He believed that his current employer would sponsor him for the visa.
The applicant’s agent acknowledged that the applicant would be able to apply for a visa offshore if his visa were cancelled, however, it was likely there would be extensive delays in the Department processing any offshore skilled visa application which would cause the applicant and his proposed employer difficulties.
The applicant’s father gave evidence in support of the application. He said that he and his wife were currently in Australia on visitor visas but were hoping to apply for a contributory parent visa and they had the funds available in order to make that application. He confirmed that he and his wife and sold their property in Cambridge, but still owned a property on the Isle of Mann.
The applicant’s father was not sure what the applicant would do if his visa were cancelled. He said that he had not spoken to him about this. He said that he believed that he and his wife would return to England to help support their son in the United Kingdom. He said that he and his wife were retired and are living off their savings. He said that they were ‘not short of money’.
The applicant’s sister gave evidence in support of the application. She said that she recalled the applicant seeing a doctor after May 2017, but was not sure exactly when this happened. She said that this was due to the depression he was suffering following the breakup of his relationship with his partner and other issues.
The applicant’s mother gave evidence in support of the application which was consistent with that given by her husband.
Post-hearing information
The applicant was given further time to provide documents in support of the application including any certificate as to carpentry he had obtained, the proposed sponsor of his own 457 visa and any other material in support of the application.
The applicant provided a Certificate III in Carpentry issued by Train N Trade dated 29 January 2018. The record of results indicates that all the units completed were done so by recognition of prior learning. No information was provided on what the prior learning recognition was based on.
A letter from the applicant’s employer, Tunco Industries, stated that the applicant had been working for them since September 2017 and that they were currently in discussions about the possibility of sponsoring him for a 457 visa. No other evidence was provided to support the claim the applicant was working as a carpenter prior to that time.
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
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)(a). 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?
A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, i.e. satisfaction (per French and North JJ at [54]).
The basis of the Department’s decision to cancel the applicant’s visa was that he was no longer the de facto partner of Ms Van Waelscappel who was the primary applicant for the Subclass 457 visa and was therefore no longer a member of her family unit. The applicant has acknowledged that his de facto relationship with Ms Van Waelscappel ended in about February 2017 and that on that basis he was no longer a member of her family unit.
The grant of the visa to the applicant was based on the fact that he was the de facto partner of Ms Van Waelscappel and a member of the family unit. As this fact or circumstance is no longer the case and no longer exists, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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
There are no matters specified in the Act or Migration Regulations 1994 (the 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’.
The basis of the grant of the visa to the applicant was that he was a member of the family unit of Ms Van Waelscappel. There is no information before the Tribunal that the applicant would meet the criteria for the grant of any other visa at this time, or at any other time that he held the 457 visa, on the basis of being a member of the family unit of Ms Van Waelscappel.
The applicant has a desire to be able to remain living in Australia. His sister currently lives in Australia and his parents are currently in Australia on visitor visas and have stated that it is their intention to apply for a contributory parent visa, but would require the applicant to be in Australia to meet the balance of family test to satisfy the criteria for the grant of that visa. At this time, they have no right to reside permanently in Australia.
Although the applicant claims that the breakdown of his relationship with Ms Van Waelscappel was not his fault, the fact is that the only reason that he was granted the 457 visa or had the right to reside in Australia was because of that relationship. For whatever reason, that relationship has come to an end and the basis for which he had the right to reside in Australia has ceased.
When considering the purpose of the applicant’s travel and stay in Australia, the Tribunal is not satisfied that this provides a reason not to cancel the visa.
There is no information that the applicant has not complied with all visas which have previously been granted to him. It is noted, however, that the applicant did not advise the Department of the breakdown of his relationship until he was contacted by the Department itself as to this issue. This matter is discussed below.
The applicant is likely to suffer some hardship if his visa is cancelled. The applicant has a personal wish to be able to remain living in Australia. The applicant’s sister currently lives in Australia. The applicant’s parents are currently in Australia and have stated they hoped to be able to apply for a contributory parent visa. They would only meet the balance of family test the applicant were a permanent resident in Australia. There is no information before the Tribunal that the applicant would meet the criteria for the grant of the visa giving him permanent residence in Australia at this time.
The applicant does not have any significant financial resources in Australia. If he were required to return to the United Kingdom, it is likely that he would face some difficulties in immediately obtaining employment. He has, in the past, however been able to support himself living in London. The applicant has recently commenced work as a carpenter. He has previously worked in the hospitality industry and has qualifications in music production. The applicant has shown himself to be able to find accommodation for himself in Australia as well as find employment. He has received the support of his parents in the past and there is nothing to indicate that he would not continue to receive this support from his parents if he were required to return to the United Kingdom.
It is claimed that the applicant suffers from severe anxiety, depression and panic attacks. A mental health plan was prepared by Dr Barry on 3 January 2018. It is noted that in the documents provided from Dr Barry there was no past history of any condition recorded and the applicant was not shown to be receiving any current medications. This was inconsistent with the information provided by the applicant which was that he had consulted a doctor about the time of his relationship breakdown in February 2017 and had been prescribed medication, but that he did not continue taking the medication for more than a week. The applicant claimed that he had consulted a doctor about six years prior to the hearing in the United Kingdom in relation to depression.
Throughout the time that the applicant has claimed to have suffered depression, he has been able to arrange his affairs, including arranging accommodation, obtaining employment and claiming to have continued studies in Australia. Although the applicant may be suffering from some degree of depression and suffering a mental illness arising from the breakdown of his relationship and the cancellation of his visa, he has been able to continue functioning as a productive member of society despite any condition he may be suffering. The reference provided by the applicant’s employer described him as ‘a great employee’ and someone who ‘has always been willing to go that extra mile’. This does not indicate a person who is suffering from a mental illness to such an extent that he could not care for himself or it would provide a reason not to cancel his visa.

The applicant has previously obtained medical assistance in the United Kingdom in relation to depression. There is nothing to indicate that the applicant would not be able to access any appropriate assistance or medication he may require due to any mental illness he may suffer from if he were to return to the United Kingdom.
The circumstance in which the ground for cancellation arose was the end of the relationship the applicant had with the primary visa applicant, Ms Van Waelscappel. The applicant claimed that the end of the relationship was a surprise to him and, as a result, the ground for cancellation arose from events beyond his control.
The relationship ended in February 2017, one year ago. Any person who commits to a relationship with another person does so believing that their relationship will be permanent and with plans for their future together. When a relationship ends both parties to that relationship are required to reassess their lives and what they wish to do for their future. These are the circumstances that now face the applicant and Ms Van Waelscappel.
Although the applicant may have believed that he would have eventually been entitled to the grant of a visa granting him permanent residence in Australia, he would only have been able to do so based on being a member of the family unit of Ms Van Waelscappel. The end of that relationship means that the reason why the applicant was granted the visa to reside in Australia has come to an end and the applicant cannot rely on any application that Ms Van Waelscappel may make entitling her to reside permanently in Australia to allow him to similarly reside permanently in Australia.
The Tribunal takes into account the fact that the applicant was not expecting his relationship with Ms Van Waelscappel to come to an end when considering whether to exercise the discretion to cancel the visa.
The Department contacted the applicant in April 2017 asking him to provide information as to his visa. It was only then that the applicant advised the Department that his relationship with Ms Van Waelscappel had come to an end. This was three months after the parties had separated. The applicant explained the fact that he did not contact the Department immediately after the end of his relationship because he thought that as Ms Van Waelscappel was the primary visa applicant, it was her responsibility to advise the Department of the breakdown of their relationship. The Tribunal does not accept this.
It is a responsibility of all visa holders to advise the Department of any change in their circumstances which affects the basis for which they were granted a visa. Even though the applicant was granted the visa as a secondary applicant of Ms Van Waelscappel, the Tribunal does not accept that the applicant would not have been aware of his responsibility to advise the Department of any change in circumstances which would have affected the validity of the visa granted to him. The fact that the applicant failed to advise the Department of the end of his relationship with Ms Van Waelscappel does him no merit.
The applicant has otherwise communicated promptly with the Department and with the Tribunal in respect of this review application.
The cancellation of the applicant’s visa would not result in any consequential cancellations. Although his parents have stated they would like to be able to apply for a contributory parent visa, they have not done so at this time and there is no information that would indicate even if the applicant’s visa was not cancelled they would meet the criteria for the grant of that visa at this time.
There is no information before the Tribunal which indicates that cancellation would result in a breach of Australia’s international obligations.
The applicant has recently commenced employment as a carpenter. Although the applicant claimed in April 2017 that he had started working in carpentry, the only evidence from an employer that he had been employed as a carpenter was from Tunco Industries which stated that he had worked for them since September 2017.
In April 2017, the applicant claimed that he was ‘looking to go to TAFE in May’ to continue his education and become a fully certified carpenter. There is nothing to indicate that the applicant enrolled in TAFE or any other recognised educational institution to undertake any training or education to obtain qualifications as a carpenter.
The applicant provided a Certificate III in Carpentry awarded to him by Train N Trade dated 29 January 2018. He provided a record of results which indicated that all units of competency had been granted to him based on recognised prior learning. No information was provided for the basis of the prior learning the applicant was assessed as possessing.
There is no information before the Tribunal that the applicant’s current employer has been approved as a sponsor by the Department. The applicant’s agent has stated in submissions that his current employer was previously approved as a Standard Business Sponsor, but this has expired. The applicant is not subject to a current nomination application and, at most, his employer has said that they ‘are currently in discussions about the possibility of sponsoring (the applicant) on a 457’. There is no information before the Tribunal that would indicate the applicant would meet the criteria for the grant of that visa.
The claim that the applicant would be applying for a 457 visa in Australia if the visa were not cancelled is merely speculative. There is nothing to stop the applicant, should he meet the criteria for the grant of the visa, from applying for a visa offshore. In the 12 months since his relationship has ended with Ms Van Waelscappel it does not appear that the applicant would have met the criteria for the grant of any substantive visa to be able to live and work in Australia.
The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. The applicant retains the support of his family. His brother continues to live in the United Kingdom. It is likely his parents will return to the United Kingdom and will continue to provide some emotional and financial support for the applicant in the future if required.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Hugh Sanderson
Member

[2018] AATA 256

13 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies