Sa Alves (Migration)

[2019] AATA 3717

Sa Alves (Migration) [2019] AATA 3717 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabio Sa Alves

CASE NUMBER:  1901933

HOME AFFAIRS REFERENCE(S):           BCC2018/4134122

MEMBER:Alan McMurran

DATE:8 August 2019

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 08 August 2019 at 12:20pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – fact or circumstance no longer exist – member of the family unit – relationship ceased – consideration of discretion – prospective employer willing to sponsor applicant – relationship breakdown not initiated or caused by the applicant alone – significant business and financial ties in Australia – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12

CASES
MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 29 January 2019 for review of a decision dated 25 January 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)(a) on the basis that the applicant was no longer a member of the family unit of a primary visa holder (Michelle Bekkers) and that the relationship had ceased. 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 25 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a director, Nathanial Flack, who appeared by telephone from Brisbane.

4. The applicant was represented in relation to the review by his registered migration agent, Ms Jarvis, who also attended the hearing by telephone from Adelaide and made oral submissions. The applicant sought and was granted an extension of time until 8 August 2019, to provide further information following the hearing in support of his submission that the decision to cancel the visa should be set aside.

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)(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.

7. For this review, the Tribunal has available to it a copy of the Department’s file[1] , and the Tribunal’s case file, together with recent submissions by the applicant made 24 and 25 July 2019. The tribunal also has available the oral evidence and submissions from the hearing.

   Background

   [1] BCC 2018/4134122

8. The applicant is a 35-year-old citizen of Portugal. The applicant came to Australia on a holiday visa on 4 February 2015. In May 2015, and while in Australia, the applicant formed a relationship with Jamie Bekkers, a citizen of Holland. The parties commenced living together in Sydney on or about October 2015 in a de facto relationship.

9. The applicant said that by October 2018, the parties had commenced a period of separation although at the time he was still hopeful of reconciliation. That did not occur, and by January 2019, the applicant accepts that the relationship was at an end. According to the Department file[2] , on or about 12 November 2018 a response was received from the applicant that his address in Sydney was unchanged. Around this time, the applicant’s migration agent also was in contact with the Department as to his representation concerning a proposed visa application for a business talent visa Subclass 132.

   [2] Ibid at ff 19- 20

10. On 28 November 2018, the Department sent the applicant a notice under section 119 of the Act, providing particulars and setting out its intention to consider cancellation of the applicant’s Subclass 457 visa. The applicant was asked to respond which he did acting on his own behalf on 4 December 2018. Details of the applicant’s response are outlined below. Further attempts were made by the Department to contact the applicant by telephone, and enquiring as to the proposal for the subclass 132 visa and application. The applicant was unable to confirm timing for the lodgement of his proposed application and in the event did not make the application.

11. On 16 January 2019, the applicant advised the Department of a proposed application for a TSS subclass 482 visa. The applicant was provided a further short period within which to lodge the application and inform the Department. This did not occur, and no application was lodged, and the Department made a decision to cancel the visa on 25 January 2019.

12. A copy of the Department’s decision was included in this application for review. The applicant was informed by the Department’s decision that, notwithstanding his response by email on 4 December 2018, including that he then still hoped for a reconciliation as at that date, the ground for cancellation existed as he was no longer a member of the family unit of Jamie Bekkers (as advised by her), and the circumstance which had permitted the applicant the grant of a subclass 457 visa no longer existed. The delegate was also not satisfied in the circumstances that the grounds for cancelling the visa were outweighed by reasons for not cancelling the visa.

13. At the hearing, the applicant did not seek to dispute that the relationship had ended or that he was no longer a member of the family unit as prescribed by regulation 1.12. Instead, he sought to put forward reasons for the change of circumstance, the historical context and to provide background for consideration (which is dealt with below) and rationale for the exercise of discretion as to why the visa should not be cancelled.

    Does the ground for cancellation exist?

14. A visa may be cancelled under s.116(1)(a) if the Minister 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.

15. The Tribunal is satisfied that it was a basis for the grant of the visa that the applicant be a member of the family unit with Jamie Michelle Bekkers, and which family unit and relationship 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. A change in the decision-maker’s state of mind (about whether they are satisfied a visa criterion is met) was not a basis for cancelling a visa on that ground: per French and North JJ at [48]-[56]).

16. The Tribunal has set out above a brief chronology which the applicant does not deny and which the applicant now accepts, that the relationship and family unit no longer exists.

17. For these reasons, the Tribunal finds 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 visa should be cancelled.

18. The issue for the Tribunal in relation to the exercise of discretion occupied most of the hearing time and submissions from the applicant. Details of those submissions and considerations are set out below.

    Consideration of discretion

19. 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’.

    Purpose of the visa holder’s travel and stay in Australia

20. The facts about the applicant’s arrival in Australia and his purpose are not in dispute. The applicant first arrived as a visitor in February 2015, and subsequently as a student in June 2015. He then sought a business visitor visa which was refused in October 2016, and subsequently made application for a subclass 457 visa sponsored by Mantis Design Pty Ltd which was withdrawn.

21. As the applicant was in a bona fide domestic relationship from about the middle of 2015, he was granted a 457 visa as a secondary applicant (family member) of the primary visa holder, Ms Bekkers. The applicant explained the background to that relationship at the hearing as follows. He said Ms Bekkers had obtained employment in Sydney as a veterinary nurse and they had commenced living together in about October or November 2015. He said that Ms Bekkers had intended to apply to study veterinary science and become a veterinary surgeon. He explained that she had been unsuccessful in enrolling at Sydney University (twice refused) and ultimately sought to enrol in a New Zealand university for the same degree. He said she qualified for enrolment in New Zealand, subject to payment of fees. He said the initial enrolment cost was $30,000, which he provided.

22. Ms Bekkers travelled to New Zealand in early 2018 to complete a pre-enrolment course, and where she remained until about July 2018. On completion of the pre-enrolment requirement, he said that Ms Bekkers was required to pay a further sum of $50,000 to confirm her enrolment at Massey University located at Palmerston North. The applicant explained the proposed university qualification was a four-year degree and that as the deadline for payment of the further fees approached, he and Ms Bekkers argued. Subsequently he said he paid the $50,000 directly to Massey University from his own funds. He said he also deposited $15,000 into Ms Bekkers personal account to cover her initial accommodation and living expenses. The applicant said that consequent upon her having completed successfully the pre-enrolment course in New Zealand, Ms Bekkers was eligible to reapply to Sydney University to enrol in veterinary science. He said she was undecided as to what to do but ultimately determined not to take up the New Zealand opportunity and remain in Australia.

23. The applicant said that Ms Bekkers contacted Massey University and obtained a refund of $50,000 which was paid to her. She also retained the $15,000 he had deposited into her personal account. This all occurred in the first half of 2018. The applicant said that following disagreements between them, Ms Bekkers left their home and began to live separately and apart. He said the applicant retained the funds he had provided to her. The applicant said he continued to support her and purchased her a motor vehicle. He said that he did not regard the relationship as having irretrievably broken down and was unaware the Department had been contacted about the relationship breakdown. An email from Ms Bekkers to the Department on 13 November 2018 provides confirmation from her of “relationship breakdown in July and again on 25 October 2018”. The applicant said he was unaware of the notification and Ms Bekkers request for him to be “taken off” her visa[3] until he received a notification from the Department under section 119 of the proposed cancellation of his visa in November 2018.

    [3] DIBP file at f 29

24. The applicant said that he intended to make his own way in Australia and had discussed with his migration agent following the breakdown of the relationship, making application for a proposed Subclass 132 Business Talent visa, and Subclass TSS 482 visa with the support of a sponsor. The applicant said that he had come to Australia initially with the intention to remain here permanently and make a life in Australia. He said he had initially invested everything in the relationship with Ms Bekkers, both financially and personally, and that it had been their joint intention to remain in Australia, not his alone.

25. At the hearing and with his written submissions,[4] the applicant outlined his work history while in Australia. The applicant engaged a migration agent to represent him in these cancellation proceedings, and another agent to represent him in relation to work visa applications. The applicant’s evidence sets out proposed employment firstly by OneChat Pty Ltd as “Executive Gen Manager-Business Integration and Acquisitions”[5] and more recently as “Chief Investment Officer” with Fundamental Business Finance Pty Ltd.[6] At the hearing, the Tribunal heard evidence from a director of that company, Nathaniel Flack, who spoke in support of the applicant’s employment credentials and intention to employ him as Chief Investment Officer. Mr Flack said the company was unable to make the application while the cancellation remained in place and was awaiting the outcome of the cancellation proceedings, before making the company’s nomination application. The applicant’s representative confirmed the instructions to make the application.

    [4] T case file at ff 55 - 85

    [5] Ibid at f 63

    [6] Ibid at f 71

26. Having considered the above information and the extensive discussion at the hearing, the Tribunal gives some weight to these considerations in contemplation of the exercise of discretion.

    The extent of compliance with these conditions

27. Other than for the matters the subject of these cancellation proceedings, there is no evidence before the Tribunal that the applicant has not complied with his visa conditions. He has been in communication with the Department, responding to the cancellation proposal following his receipt of the information in early December 2018, and provided a fulsome explanation as to the background of the breakdown of his relationship with the primary 457 visa holder (Ms Bekkers). It is evident to the Tribunal that the applicant takes his visa responsibilities very seriously, and has invested in the process of seeking a substantive visa to remain in Australia, engaging representation and actively participating in the review process.

28. The Tribunal gives some weight to these considerations, and the fact that the relationship breakdown leading to the cancellation was not initiated by the applicant, was beyond his control and not the result of intentional non-compliance with his visa commitments.

    The degree of hardship that may be caused

29. It is usual upon cancellation that there will be some dislocation and inconvenience to a visa holder, particularly in circumstances where they are compelled to return to their country of origin.

30. The applicant says that he has a firm opportunity in Australia for employment and a sponsor who wishes to retain him and his expertise. The sponsor has confirmed that in the telephone evidence from the director and the Tribunal is satisfied this is in fact the case.

31. The applicant said that he has no close family remaining in Portugal, other than his daughter (now adult) who has now come to Australia and is living with the applicant in Sydney. The applicant conceded however that there was no reason why he could not return to Portugal. The applicant has purchased a home in Sydney and embarked on financial commitments, including to his former de facto partner and by establishing his own company. Although he has been in Australia for a relatively short period since 2015, it is apparent to the Tribunal that he has made substantial investments. These however are not so difficult or complex that they would warrant not cancelling the visa, and the Tribunal gives minimal weight to these considerations.

    The circumstances giving rise to the cancellation

32. The Tribunal has touched upon the circumstances as set out above. There is no evidence of any family violence associated with the relationship breakdown, which appears to have arisen over financial issues and differences of opinion between the applicant and his former de facto partner about their future together. As stated, the Tribunal finds the breakdown was not initiated or caused by the applicant alone. The applicant stated that until early 2019, he believed the relationship might be resumed. That however is not the case.

33. The Tribunal gives some weight to the circumstances surrounding the relationship breakdown, in consideration of the exercise of its discretion.

    Past and present behaviour of the visa holder

34. The Tribunal finds there is no evidence before it of any adverse information concerning the applicant or issue surrounding his behaviour which might stand against him in consideration of the proper exercise of discretion and the Tribunal gives some weight to this consideration.

    Consequential cancellations under section 140

35. The Tribunal notes and is satisfied there are no consequential cancellations affecting any other visa holder as a result of this decision, and the Tribunal gives no weight to this consideration.

    Mandatory legal consequences including detention

36. Upon the cancellation decision being affirmed, the applicant will have a short window of opportunity to lawfully tidy his affairs, comply with his bridging visa conditions and leave the country. That of course would be subject to any further decision by the Department or the Minister to grant an extension of time or in respect of any other consideration for the Minister made by the applicant. Provided the applicant is not in breach of the current visa conditions, he would not be subject to detention, and the Tribunal gives minimal weight to this consideration.

    International obligations

37. The Tribunal is not aware of any international obligations, including non-refoulement obligations which might be breached as a result of the cancellation, and the Tribunal gives minimal weight to this consideration.

    The applicant’s business or other ties in Australia

38. The Tribunal has touched upon the applicant’s employment history, investment and existing financial ties[7] through the purchase of his home and acquisition of business interests, together with his employment history as a senior financial consultant and executive, and proposed employment for him in that regard by a significant employer in the financial industry (Fundamental Business Finance Pty Ltd).

    [7] Submission made 24/07/2019 attaching applicant’s 2017 taxation return

39. According to his 2017 tax return, the applicant had a taxable income that year of $480,000 and PAYG tax assessed at $198,662.The Tribunal places some weight upon this consideration, and finds it is satisfied having heard from the applicant directly of his bona fides and intention to continue to contribute significantly to Australia in terms of his proposed employment opportunities, which in the Tribunal’s view are significant.

    Other relevant matters

40. The Tribunal finds there are no matters in the applicant’s past, or criminal or other proceedings which might reflect on his character, or provide reasons for the cancellation to be affirmed. On the contrary, the Tribunal accepts the supportive references from his employers, the significant financial and personal commitment made by the applicant to the de facto partner and relationship, the breakdown of which has led to the cancellation.

41. The applicant says that he has significant funds overseas in Spain and Portugal which cannot be remitted to him to continue his financial investments in Australia, until the outcome of this review decision is known. Accepting that the applicant has already made significant financial decisions while in Australia, has been engaged in employment earning significant salaries while supporting himself and his former partner since 2015, has purchased a home and intends to continue to invest in Australia with his personal funds once the review decision is known, he submits these are considerations that the tribunal should take into account.

1. The Tribunal is mindful that there is no evidence independently to support the statements about proposed future investment, and save for the history which the applicant has demonstrated at the hearing and in his submissions; the Tribunal can give only minimal weight to these matters. They are however relevant, and the Tribunal finds that the applicant was a credible witness, who put forward an objective, candid and sincere explanation for the circumstances in which he finds himself. This consideration must also carry some weight.

   Summary

2. The Tribunal has carefully considered the applicant’s submissions, the supporting statements from the witnesses[8] and the evidence obtained at hearing following the lengthy discussion with the applicant and his representative. The Tribunal finds that in consideration of all of the above, the weight of evidence is in favour of the Tribunal exercising its discretion not to cancel the visa.

   [8] T file at f 85 – letter dated 25/7/2019

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

   DECISION

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

   Alan McMurran
   Member