Sugiarto (Migration)

[2019] AATA 897

Sugiarto (Migration) [2019] AATA 897 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Angela Sugiarto

CASE NUMBER:  1806314

HOME AFFAIRS REFERENCE(S):           BCC2017/3197090

MEMBER:Amanda Mendes Da Costa

DATE:4 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2019 at 3:25pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – standard business sponsorship cancelled and barred – consideration of discretion – purpose of a Subclass 457 visa – position no longer available to the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 March 2018 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)(g) on the basis that a prescribed ground under Regulation 2.43(1)(iv) of the Migration Regulations 1994 (the Regulations) existed for  cancellation of  the applicant’s visa, namely, that the standard business sponsorship of her sponsor had been cancelled.  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. On 16 November 2018 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it 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 7 February 2019.  On 29 January 2019 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.  On 30 January 2019 the Tribunal invited the applicant provide any further documentation to the Tribunal before it made its decision.  The applicant declined this offer on 30 January 2019.  This matter has therefore been determined on the evidence available to the Tribunal.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

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)(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?

7. A visa may be cancelled under s.116(1)(g) if the Minister 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)(l)(iv) is relevant.

8. On 6 October 2015 the applicant was granted a Temporary Work (subclass 457) visa for the position of Marketing Specialist with Capvent Advisory Services Pty Ltd (CAS), a standard business sponsor with an approved nomination for the position.

9. Following the grant of the visa, the Department determined that CAS had provided false or misleading information (as defined in r.2.90) to the Department in the application for the standard business sponsorship for the company and in three nomination applications associated with Temporary Work (subclass 457) visas, including the nomination associated with the applicant’s visa.

10. In these applications, the lease agreement provided by CAS indicated that the business had leased office space at Suite 6, 501 Church Street, Richmond Victoria, purportedly valid for four years from 1 July 2014, and an organisational structure chart which indicated 20 positions within the business.  Other documents were provided, including employment contracts, labour market test reports, a letter of support from the director of the company and copies of tax invoices issued by the company to various other businesses, to indicate that the company and the positions of its employees including that of the applicant as Marketing Specialist were based at Suite 6, 501 Church Street, Richmond, Victoria and that the business was operating lawfully.

11. Departmental officers conducted a site visit to the company’s address in Church Street, Richmond where it became apparent to them that Suite 6 did not appear to exist in the building.  Officers spoke to other business operators at the same address, who advised that CAS did not occupy offices at that address, nor did it operate its business from the premises.

12. Based on this information the Department determined that CAS did not lease office space at the address in Church Street Richmond, and accordingly had provided false or misleading information to the Department in order to demonstrate the size of its business and the genuineness of the positions purportedly held by its staff, including the applicant.

13. As a consequence of these findings on 12 October 2017 the Department cancelled the standard business sponsorship of CAS under s.140M(1)(a) of the Act and the company was barred for five years from making future applications for standard business sponsorship under s.140M(1)(d) of the Act.

14. On 5 February 2018 the Department sent the applicant a Notice of Intention to Consider Cancellation of her visa (NOICC).

15. On 27 February 2018 the applicant provided a written response to the NOICC in which she submitted that CAS failed to advise her that its standard business sponsorship had been cancelled by the Department on 12 October 2017 and that she only discovered this when she received the NOICC.

16. The applicant advised the Department that after receiving the NOICC she spoke to her employer and was advised that the company was sorting out the matter with the Department.  She was not provided with any further information by her employer.  The applicant subsequently resigned from her employment with CAS, effective 7 February 2018 and advised the Department that she was no longer associated with CAS.

17. On the basis of the above evidence, the Tribunal is satisfied the standard business sponsorship of the applicant’s sponsor was cancelled on 12 October 2017. Accordingly, the Tribunal finds that the ground for cancellation in s.116(1)(g) 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

18. 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, whether the visa holder has a compelling need to travel to or remain in Australia

19. The applicant initially arrived in Australia on a tourist visa on 19 June 2006.  She departed less than one month later without incident.  She subsequently arrived in Australia on a Student (Subclass 571) visa on 6 September 2007 to study at a secondary school and remained in Australia on multiple student visa extensions while she completed a diploma of business and a bachelor of business and commerce degree at Monash University. The applicant completed her studies on 30 June 2015.

20. The applicant was granted a Temporary Work (Subclass 457) visa on 6 October 2015 to work in the position of Marketing Specialist with CAS, the applicant’s sponsor.

    The extent of compliance with visa conditions

21. There are no known instances of non-compliance with visa conditions.

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

22. The Tribunal accepts that in the event of cancellation of the visa, the applicant is likely to experience some difficulties in returning the Indonesia and re-establishing her career and personal life after nearly 13 years in Australia.

23. There is no information before the Tribunal to indicate that there are any family members in Australia who would experience hardship as a result of the visa cancellation nor did the applicant provide any information about family members in the visa application, response to the NOICC or to the Tribunal.

    Circumstances in which the ground of cancellation arose

24. The Tribunal accepts that prior to the cancellation of her visa, the applicant was employed in her nominated skilled occupation by CAS, which was a standard business sponsor, holding an approved nomination for the applicant.  The Tribunal notes that the approval of the applicant’s sponsor as a standard business sponsor was cancelled on 8 March 2018 under s.140M(1)(a) of the Act.  The applicant ceased employment with the sponsor on 7 February 2018.

25. The Temporary Work (Skilled) visa is a temporary visa which enables the visa holder to remain in Australia temporarily for a period of four years.  The purpose of that visa was to enable the applicant to be employed in Australia as a Marketing Specialist for her sponsor CAS.  That employment is no longer available to the applicant and there is no evidence before the Tribunal that she has found a new sponsor being an approved standard business sponsor, since her employment with CAS ceased on 7 February 2018.

    Past and present behaviour of the visa holder towards the Department

26. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

27. There is no information before the Tribunal which indicates that there are any family members or other persons who hold a visa because the applicant holds a visa, who would have their visa consequentially cancelled under s.140 of the Act, in the event of cancellation of the applicant’s visa.

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

28. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely because as an Indonesian citizen she will be able to return to Indonesia. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for a visa not prescribed for the purposes of s.48 while in the migration zone.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. There is no evidence and the applicant does not claim that visa cancellation would affect Australia’s international obligations or would be in breach of Australia’s non-refoulement obligations or the Convention on the Rights of the Child.

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

    DECISION

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

    Amanda Mendes Da Costa
    Member