Taylor (Migration)

Taylor (Migration) [2017] AATA 58 (3 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Eugene Allen Taylor
Mrs Gail Ann Taylor
CASE NUMBER:  1607685
DIBP REFERENCE(S):  BCC2016/1389353
MEMBER:Antonio Dronjic
DATE:3 January 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Statement made on 03 January 2017 at 10:22am

CATCHWORDS
Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Ceased employment exceeding 90 days – Sponsor ceased trading – No formal termination – Sponsor barred – No approved nomination

LEGISLATION
Migration Act 1958, s 116(1)(b)(g), s 140(1), s 140M
Migration Regulations 1994, r 2.43 (1)(l)(IV), Condition 8107(3)(b)
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]
Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Tien & Ors v MIMA (1998) 89 FCR 80 at 96
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 May 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 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.
Background to the cancellation of the applicant’s visa
The decision record of 25 May 2016 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:
·On 22 September 2014, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 22 September 2018;
·The standard business sponsor who most recently nominated the applicant to work as a Management Consultant was Continuity and Compliance Management Services Pty Ltd (CCMS);
·The department received advice that CCMS ceased trading on 13 October 2015;
·A notice of intention to consider cancellation (‘NOICC’) was issued on 9 May 2016;
·The decision record wrongly states that no response to NOICC was received. In fact, on 16 May 2016, the applicant submitted comprehensive response to NOICC outlining the history of his employment at CCMS; submitting that it never occurred to him that he was in breach of his visa condition, that he expected to receive formal termination of employment from his employer and that 90 days period commences only after he receives a formal termination of employment. He further stated that on 7 April 2016 he was informed by the department that CCMS’s sponsorship approval was cancelled and that he has 90 days from this notification to find new employment. He has been trying to find alternate employment and has a company willing to make him a job offer subject to visa approvals. The applicant further stated relevant matters related to the question whether discretion to cancel should be exercised (department folios 17 – 23)
·On 25 May 2016, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the tribunal on 28 May 2016 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 7 September 2016, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that 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 scheduled for 20 December 2016.
On 15 December 2016, the applicant’s representative provided the following documents:
·Legal submissions, stating that the applicant ceased employment at CCMS on 26 February 2016; that the sponsoring employer went into external administration on 14 October 2015; that Mr Taylor never received a formal termination of his employment, that in May 2015 he was instructed to work from home, that CCMS clients continued to correspond with Mr Taylor until March 2016, that the former visa holder was only paid by CCMS on four occasions since commencing employment; that, on or about 20 October 2015, Mr Taylor advised the department that CCMS was placed into external administration and sought advice from the department as to what to do; that on 7 April 2016 the applicant was advised by the Sponsorship Monitoring Unit (SMU) that CCMS’s sponsorship approval was cancelled on 6 April 2016 and that only than become apparent that his employment at CCMS ceased. It was further submitted that the applicant responded to the NOICC on 17 May 2016 and that the delegate failed to consider the response before proceeding with the visa cancellation. The applicant’s representative addressed relevant matters related to the question whether discretion to cancel should be exercised (tribunal folios 72-74);
·Document headed AAT Collateral Content Reference;
·Letters from the applicant’s daughters, Ms Tiffany Taylor and Kerryn Siems;
·Job offer extended to the applicant by Elasticus dated 14 November 2016, stating that the business is committed to offering the applicant a full time employment and sponsorship; that the business held off submitting sponsorship application as the applicant was advised by the department that he cannot apply for other visa until the review process before the AAT is completed;
·Reference letter from Mr Tickner dated 25 November 2016;
·Undated reference letter from Mr Midler of Linus Consulting;
·Reference letter from Ms Miller of B4Crisis dated 12 December 2016;
·Reference letter from Mr Papakyriakopulos dated 9 December 2016;
·Reference letter from Mr Kenny dated 13 December 2016;
·Document headed ‘Communications time line’;
·Copy e-mail sent to the department by the applicant on 20 October 2015, informing the department that his employer has abandoned the company; that his employer owns him money and has violated his sponsorship obligations;
·Copy letter dated 7 April 2016 sent to the applicant by the department, informing him that CCMS’s sponsorship approval was cancelled on 6 April 2016;
·Copy e-mail sent to the applicant by the department on 27 May 2016, informing the applicant that he can obtain new sponsorship at any time;
·The applicant’s Resume;
·Copy employment agreement between the applicant and CCMS signed on 8 April 2014;
·Copy subclass 457 visa grant notice dated 22 September 2014 containing the explanation of the conditions imposed on the applicant’s visa;
·Copy e-mails exchanged between Mr Cvetkovic (former Managing Director of CCMS) and the applicant in September and October 2015;
·Copy e-mails exchanged between the applicant and company clients; and
·Copy Medical Certificate confirming that the applicant scheduled eye surgery on 25 January 2017.
The applicant appeared before the Tribunal on 20 December 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his migration agent who attended the hearing via telephone conferencing.
The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. The tribunal explained why it does not have jurisdiction in respect of the secondary applicant. The tribunal further explained that the review applicant’s visa was cancelled under s.116 (b) of the Act as the delegate concluded that he had not complied with the condition of his visa.
The tribunal raised additional issue with the applicant. In his written submissions, the applicant stated that CCMS’s sponsorship approval was cancelled on 6 April 2016. The tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116(1)(g). 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. (the sponsor has been cancelled or barred under section 140M of the Act).
The tribunal further explained to the applicant that, if satisfied that the ground or grounds for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines. The applicant confirmed that he understood the explanation.
I informed the applicant that the department’s file contains s.375 Certificate containing information that a policy advice was sought. I advised the applicant that I do not consider the certificate to be valid as it does not specify a valid reason why the disclosure would be contrary to public interest. I further indicated to the applicant that the information purportedly protected by the certificate is irrelevant for the purposes of the current review and will not be the reason or part of the reason for my decision.
The applicant is 59 years of age, married national of UK and South Africa. His two daughters live in Australia and two sons in UK. He has five siblings who live in South Africa. Prior to arriving in Australia as a holder of a visitors’ visa in August 2014, the applicant and his wife were living in UK for the period of some 12 years. Both the applicant and his wife were in a paid employment in UK. They do not own any real-estate either in UK or South Africa.
Mr Taylor confirmed that he was granted a subclass 457 visa on 22 September 2014 and that his nominated occupation was Management Consultant (Resilient Specialist). He commenced his employment at CCMS immediately after the visa grant. The business was located at Hoppers Crossing, VIC and, apart from the Managing Director, Mr Cvetkovic, he was the only employee. According to the employment agreement, his annual salary was $62,000. He stated that he received payment of his wages on four occasions only, despite the agreement with his employer that his salary is to be paid on a monthly basis.
In March 2015, he was told by the Managing Director that the office at Hoppers Crossing is closing and the applicant was instructed to work from home. He gave evidence that he continued to work from home until April 2016.
He gave evidence that he was aware from October 2015 that the sponsoring business was placed under involuntary administration. Despite of this knowledge, he claims that he continued to work for the sponsoring business until April 2016.
I noted that from October 2015 the CCMS had an external administrator appointed. I asked the applicant if he was instructed or requested by the administrator to continue to work for CCMS. He stated that he was not. He added that, at the same time, the external administrator did not officially terminate his employment.
I asked the applicant if he is currently sponsored and nominated by an Australian business and he answered that he is not.
I noted that he provided a job offer from Elasticus dated 14 November 2016. He confirmed in his evidence that the business did not apply for the approval of sponsorship status or lodged the nomination application with the department as they are waiting for the outcome of the current review application.
I further noted that he had provided to the tribunal copy e-mail received from the department on 27 May 2016, informing him that he can obtain new sponsorship at any time. I explained that the prospective employer did not have to wait for the outcome of this review in order to apply for approval of sponsorship and nomination applications.
He stated that he currently holds a bridging visa E and that he applied for and was granted work rights on 30 May 2016. He stated that he did undertake some consulting work (including some work for Elasticus) since he obtained work rights. His wife is currently working as an administrative officer for PCR partners. He further confirmed that he has no other visa applications currently pending at the department.
I explained to the applicant that, based on the evidence before me, I am satisfied that the grounds for cancellation in s.116(1)(b) and 116(1)(g) are made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I invited the applicant to state if there any other relevant matters he wants me to consider, apart from those stated in submissions provided by his representative. He stated that he has some ‘financial issues in UK’, that he may be able to find some work in UK but would struggle to find employment in his profession; that the climate in UK is too cold and that events leading to his visa cancellation have caused a lot of stress because of which he was not able to think clearly. His representative added that the applicant has an eye surgery scheduled for 25 January 2017.
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 grounds set out in s.116(1)(b) and s.116(1)(g). If satisfied that the ground or grounds 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)(b) if the Minister or the tribunal 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. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with CCMS on 13 October 2015 when the business was placed under involuntary administration. According to his evidence, he was not instructed by the company administrator to continue to work for the business after it was placed under involuntary administration. I have serious concerns with the applicant’s ‘work from home’ from April or May 2015. Even if I accept that he ceased employment with CCMS on 7 April 2016, after he was advised in writing that the sponsorship agreement was cancelled on 6 April 2016, the period during which he ceased employment exceed 90 consecutive days. Accordingly I find that the review applicant did not comply with condition 8107(3)(b).
The applicant gave evidence and conceded in his submissions that CCMS’s sponsorship approval was cancelled by the department on 6 April 2016. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the tribunal is satisfied that the ground for cancellation in s.116(g) exists.
As neither of the grounds stated above 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 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 tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Management Consultant for CCMS on a temporary basis. The applicant was unfortunate to lose his job in October 2015 when the business was placed under involuntary administration. The applicant decided to remain in Australia and continue to work for CCMS despite not being asked by the administrator to do so and despite not being paid by the business.
I accept that the applicant attempted to find a new employer and that he obtained a job offer from “Elasticus’. However, at the time of my decision, the applicant’s prospective employer did not apply for approval of sponsorship status or nominated the applicant for a position within the business. I am satisfied that the department advised the applicant by its e-mail of 27 May 2016, that the he can obtain a new sponsor at any time. It is uncertain if and when the applicant will become the subject of an approved business nomination. The tribunal is not disposed to delay making a decision indefinitely. I have taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.
[3] [2002] FCA 617
[4] [2012] FMCA 28

I have taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 22 September 2018.
The purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. I find that this purpose no longer exists as the applicant ceased working for his sponsor in October 2015. I give significant weight to this consideration.
I observe that the department did not proceed to cancel the applicant’s via until 25 May 2016 despite having the information that the sponsoring business was placed into involuntary administration in October 2015. Based on the evidence before me I am satisfied that the applicant was allowed sufficient time to secure employment with alternate Australian sponsor.
The reason for and extent of the breach
The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his 457 visa.
The ground for cancellation arose 90 days after the applicant ceased working with his sponsoring employer in October 2015.
Condition 8107(3)(b) was inserted by the Migration Amendment (Temporary Sponsored Visas) Act 2013 (No. 122 of 2013). According to the Revised Explanatory Memorandum (Migration Amendment (Temporary Sponsored Visas) Bill 2013), the purpose of this amendment is to increase the period of time for which the holder of a subclass 457 visa to whom paragraph 8107(3)(b) or 8107(3B)(b) of the Migration Regulations applies can cease to be employed without breaching condition 8107. Such a person can cease to be employed for up to 90 consecutive days (approximately 3 months) before they will be in breach of the condition.
I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, as of the day of this decision, the applicant had already being without sponsor that successfully nominated the applicant for a position within the business for more than 12 months. I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated the applicant for a position within the business after 12 months since the original cessation of employment represents a significant breach of condition 8107.
Circumstances in which ground of cancellation arose.
Whilst I accept that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.
Past and present conduct of the visa holder towards the department
There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department. Based on the evidence before me I am satisfied that the applicant informed the department of CCMS’s breach of sponsorship obligations in October 2015 and sought advice from the department. This is the consideration that favours the reinstatement of the applicant’s visa.
Degree of hardship that may be caused; whether there would be consequential cancellations under s.140
The applicant claims that the visa cancellation would cause hardship to him and his wife because he resigned from overseas employment before arriving in Australia, sold his motor vehicles and household items and shipped remaining personal assets to Australia.
He claims that he has not been paid in accordance with the employment agreement signed with CCMS and that the business owns his considerable amount of money for his work.
It was submitted that it would be costly for the applicant and his wife to relocate to UK and that he is prevented from applying for another visa from on shore.
The applicant gave evidence that he has some ‘financial issues in UK’, that he may be able to find some work in UK but would struggle to find employment in his profession. He stated that that the climate in UK is too cold and that events leading to his visa cancellation have caused a lot of stress because of which he was not able to think clearly. He also stated that he has an eye surgery scheduled in Australia on 25 January 2017.
In his response to the NOICC, the applicant stated that the primary reason for coming to Australia was to be close to his two adult daughters who live in Geelong; that the visa cancellation will result in loss of their income; that he has no place to stay if he returns to UK or South Africa; that their health and wellbeing, confidence, spirits and energy will be all but destroyed, that he would not be able to see his daughters and will be reliant on them traveling overseas to visit him and his wife; that he will not have sufficient funds to leave Australia with remaining possessions and that his former employer will not meet his obligations to repatriate the applicant and his wife to the country of origin.
I accept that that the applicant has been living in Australia since August 2014 and that both he and his wife established ties to Australian community. I have taken into consideration the applicant’s evidence that his two daughters live in Australia. I considered letters provided by the applicant’s daughters and other character and work reference letters provided to the tribunal by the applicant.
I accept that leaving Australia may involve some financial and emotional hardship to the applicant and his wife. I do not accept that the applicant would not be able to re-establish himself in UK, given his employment background and experience. Both the applicant and his wife worked in UK in the past.
Balanced against any potential hardship to the applicant and his wife that may result from the visa cancellation is the fact that the applicant was granted a temporary visa which create no expectation of remaining in Australia permanently. The 457 visa would have ceased in September 2018 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.
The applicant’s decisions to resign from overseas employment before arriving in Australia and sell his motor vehicles and household items was made knowing that, if granted, the subclass 457 visa will be granted for a period of up to 4 years.
In any event, the applicant is not prevented from re-applying for 457 visa once he finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
I am satisfied that, if the applicant’s visa remains cancelled, he will not be affected by a ‘risk factor’ prescribed in Schedule 4013 or schedule 4014 and find that this consideration does not favours the reinstatement of the applicant’s visa.
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
The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he and his family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
I am mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
Whether there would be consequential cancellations under s.140
Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, I note that the consequence will not result in separation of the applicant from his wife.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
There is little in the evidence before me that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. I find that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before me regarding this matter.
Other relevant matters
I accept the applicant claims that he is a skilled individual with expertise that may be difficult to be found in Australia. I considered and accept the reference letters from several individuals attesting to his skills and character. However, I observe that the applicant’s annual salary for the nominated position was $62,000 which I do not consider to be a salary ordinary paid for a highly skilled persons.
I accept the applicant’s evidence the he had completed several courses in Australia and that some of them will be of no use in any other country. I also accept the applicant’s evidence that he joined Risk Management Institution of Australasia (RMIA) where he made a commitment to be a part of a work group. I accept that the applicant’s wife is a blood donor, works in Australia and is keen to undertake further studies in Australia. I have taken into consideration that the applicant scheduled eye surgery in Australia on 25 January 2017 and do not accept this to be the reason for reinstatement of his subclass 457 visa. I observe that he may be able to apply for a medical treatment visa.
Having regard to the findings above and the circumstances of the case as a whole, I am satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. I am satisfied that cancelling the applicant’s visa is the correct and preferable decision.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Antonio Dronjic
Member

[2017] AATA 58

3 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice