Ralph (Migration)

[2018] AATA 4840

Ralph (Migration) [2018] AATA 4840 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jason Thomas Edward Ralph

Ms Gemma Elizabeth Graham

CASE NUMBER:  1701062

HOME AFFAIRS REFERENCE(S):           BCC2016/3501631

MEMBER:Nicola Findson

DATE:3 October 2018

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the second-named applicant.

Statement made on 03 October 2018 at 5:35pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – breach of employment conditions – ceased employment within 90 days – made unexpectedly redundant – hardship – poor employment prospects in home country – financial hardship – decision under review affirmed

Secondary applicants – automatic cancellation – no jurisdiction

PRACTICE AND PROCEDURE – applicant out of Australia – decision made on the papers

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 362B
Migration Regulations 1994 (Cth), Schedule 8 condition 8107

CASES
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 January 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 ceased employment for a period exceeding 90 days and therefore breached condition 8107.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant (the applicant). The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

5. On 30 August 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 September 2018.  The letter advised that if they did not attend the scheduled hearing, the Tribunal may proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear, or may dismiss the application without further consideration of the application. The letter also advised that the hearing may be conducted in person, by video conference or by telephone.  No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal sent two SMS hearing reminders to the applicant on 14 September 2018 and 20 September 2018.

6. The Department of Immigration’s movement records indicate that the applicant is not in Australia. It appears that he departed Australia on 3 March 2018 and there is nothing before the Tribunal to suggest that he has re-entered Australia.

7. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. 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

9. The applicant provided to the Tribunal a copy of the delegate’s notification of cancellation.  It records that the applicant, a citizen of the United Kingdom, was sponsored by RCR Tomlinson Ltd.  He was granted the subclass 457 visa on 13 October 2015 to work in the occupation of Electrician (Special Class) 341112.  Condition 8107 was attached to the visa.  It requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.  The Department was informed that the applicant had ceased employment with the sponsor, effective 4 July 2016.

10. On 11 January 2017, the Department issued the applicant with a notice of intention to consider cancellation (NOICC) of his subclass 457 visa.

11. The applicant responded to the NOICC on 17 January 2017.  He did not dispute that the ground for cancellation existed and he provided the following information:

    ·He was unexpectedly made redundant by his sponsoring employer. 

    ·Since being made redundant, he had accrued a significant debt to support himself and his family. 

    ·The prospect of having to leave Australia would cause great distress and hardship to his family, and he had nowhere to live when he returned to his home country.

    ·Arrangements were in place for him to marry in Australia in early 2017. 

    ·He had recently lodged an expression of interest in respect of a subclass 189 visa and had “a couple of potential sponsors to take over the 457 visa”.

12. On 19 January 2017 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

13. During the review process, the applicant provided statutory declarations sworn by himself as well as his wife, Ms Gemma Graham, in support of his application.  The statutory declarations, amongst other things, confirmed that the applicant had unexpectedly been made redundant in July 2016.  They indicated that the applicant had not worked for seven months following his redundancy and as a consequence they had encountered financial hardship.  They indicated that they had been ill-informed in relation to their visa issues. Ms Graham indicated that her mental health had suffered due to the stress of their uncertain visa status as well as the prospects of having to leave Australia.  They indicated they were hopeful of the applicant either obtaining another sponsor, or alternatively being able to remain in Australia on alternative visas.  They indicated that it would be difficult for them to return to the United Kingdom, because they had nowhere to live and faced bleak employment prospects

14. 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?

15. 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.

16. Amendments to Condition 8107 were made on 1 July 2013 that applied to all visas in effect on that date (Migration Legislation Amendment Regulation 2013 (No.3)). In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 requires that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(a)(ii)(B). The holder must commence that work within 90 days after the holder’s arrival in Australia: condition 8107(3)(aa). If the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: condition 8107(3)(b). The occupation listed in the nomination is not one specified in the relevant instrument referred to in condition 8107(3A) to exempt the applicant from having to comply with the requirements of paragraph 8107(3)(a). Therefore, while the applicant continues to hold a Subclass 457 visa he must work only in the occupation listed in the most recently approved nomination and must work only in a position in the business of the sponsor or an associated entity of the sponsor.

17. The information contained in the delegate’s decision is that the applicant worked for the approved standard business sponsor, RCR Tomlinson Ltd, until 4 July 2016. The applicant has not sought to contest this finding.  The Tribunal is satisfied that the applicant ceased working in the nominated position with the sponsor on 4 July 2016.

18. Accordingly, the Tribunal is satisfied that the applicant has ceased employment with his approved sponsor for more than 90 consecutive days, and therefore finds that he has not complied with condition 8107(3)(b) of his subclass 457 visa.

19. For these reasons, 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 power to cancel the visa should be exercised.

    Consideration of discretion

20. 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

21. The Tribunal notes that the applicant initially came to Australia on a working holiday visa, and subsequently remained to work as an electrician for the sponsor, RCR Tomlinson Ltd. 

22. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to work in Australia.  The Tribunal finds that the purpose of working as an electrician for the sponsor no longer exists as the applicant ceased working for the sponsor on 4 July 2016.  There is no evidence that the applicant has found a new approved standard business sponsor that has applied for approval of a nomination and that nomination has been approved. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists in relation to the applicant.

23. In the circumstances, the Tribunal gives this consideration only little weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

24. There is no evidence before the Tribunal that the applicant has not complied with visa conditions other than condition 8107. The applicant has had an opportunity to mitigate the breach by finding employment with another sponsor. The Tribunal has had regard to the applicant’s submission to the Department that he had recently lodged an expression of interest for a subclass 189 visa and that he had a couple of potential sponsors to take over his subclass 457 visa, so he was hopeful of obtaining another sponsor or remaining in Australia on alternative visas.  However, there is no evidence before the Tribunal that this has occurred.   

25. At the time of the Tribunal’s decision, it has been approximately two years since the applicant was employed by the sponsor. The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer and for the nomination to be approved. The Tribunal finds that the applicant’s failure to commence employment with a new sponsor after the non-compliance represents a significant breach of condition 8107, which leads it to give this factor some weight towards the visa being cancelled.

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

26. The Tribunal has had regard to the limited evidence before it as to the degree of hardship that may be caused to the applicant and his wife if the visa is cancelled.   Specifically, the Tribunal has had regard to the applicant’s submissions that he encountered financial hardship following his redundancy and accrued a significant debt to support himself and his family; that his wife’s mental health had suffered due to the stress and uncertainty; that he had nowhere to live when he returns to his home country; and that he faced bleak employment prospects in the United Kingdom.  

27. The Tribunal observes, however, that the applicant held a temporary visa in Australia. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing and that there would be financial and emotional consequences.  However, the Tribunal finds that the applicant would not have had a real expectation that he would be able to remain in Australia on a permanent basis.  The Tribunal is satisfied that the applicant will be able to work and support himself in the United Kingdom where he has the support of his family and the skills and experience as an Electrician.  Accordingly, the Tribunal gives this consideration little weight in favour of the visa not being cancelled.

    Circumstances in which ground of cancellation arose   

28. The evidence before the Tribunal is that the applicant was unexpectedly made redundant by his sponsor on 4 July 2016, which suggests that this was beyond his control. However, the applicant did not attend the hearing or provide any submissions to the Tribunal about the circumstances in which the ground of cancellation arose nor evidence as to why his visa should not be cancelled.  The Tribunal gives this consideration little weight towards the visa not being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

29. The applicant’s visa was cancelled on 19 January 2017, and Departmental records indicate that the applicant has left Australia.  So, there is no issue that cancellation could lead to the applicant becoming an unlawful non-citizen and subject to detention. 

30. The Tribunal is mindful however, that the visa cancellation could mean that the applicant might face difficulties in being granted further visas to Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.  The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

    Past and present conduct of the visa holder towards the department

31. There is no evidence that the applicant has breached other conditions besides condition 8107. There is no evidence that the applicant has been other than compliant with the Department except for the breach of condition 8107.

32. The Tribunal gives this consideration little weight towards the visa not being cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors

33. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    Whether any international obligations would be breached as a result of the cancellation

34. There is no evidence before the Tribunal regarding this matter. The Tribunal gives no weight to this consideration.

    Whether there would be consequential cancellations under s.140

35. The delegate decision records that there is one dependent of the applicant, Ms Gemma Graham. She will be subject to cancellation pursuant to s.140 of the Act if the applicant’s visa is cancelled.

36. The Tribunal notes that the applicant’s wife’s visa was granted on the basis of being a member of her family unit and it is the intended consequence of the legislation that members of the same family have the same visa status.

37. For these reasons, the Tribunal gives this consideration limited weight towards the visa not being cancelled.

    Any other relevant matters 

38. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. 

    CONCLUSIONS

39. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

41. The Tribunal has no jurisdiction with respect to the second-named applicant.

    Nicola Findson
    Member