VALEZA (Migration)

[2020] AATA 1228

VALEZA (Migration) [2020] AATA 1228 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manuel Versoza VALEZA

CASE NUMBER:  1816056

HOME AFFAIRS REFERENCE(S):          BCC2018/839347

MEMBER:Andrew George

DATE:3 February 2020

PLACE OF DECISION:  Darwin

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

Statement made on 3 February 2020 at 4:57pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant employed in nominated position over 60 days – no new nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8; Condition 8107; r 2.84

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 May 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)(b) of the Act on the basis that the applicant had not complied with a condition of his visa. The nature of the breach was that the Department was notified by the visa sponsor that the applicant had ceased his employment with the sponsor on 11 October 2017. By the date of the decision the applicant had not been employed in a nominated position for more than 60 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.

3. The applicant was represented in relation to the review by his registered migration agent, Mr Charles Yuen (MARN: 9903060) of Charles Yuen and Associates.

4. On 23 July 2019, the applicant was sent an invitation to comment on or respond to information under s.359A of the Act and to provide information under s.359(2) of the Act. The particulars of the information that the applicant was invited to comment on or respond to were:

   ·     You were granted a Subclass 457 visa on 26 June 2017. It was originally valid to 26 June 2021 but was cancelled on 31 May 2018. Your visa was sponsored by COLLINS RESTAURANTS WEST PTY LTD.

   ·     Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased employment, the period must not exceed 60 consecutive days.

   ·     You ceased being employed by your sponsor on or before 11 October 2017. On 31 May 2018, the date your visa was cancelled, you had not worked for your sponsor for more than 60 consecutive days.

   ·     There is no information to indicate that you recommenced employment with your sponsor.

   ·     A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

5. The applicant was given until 6 August 2019 to reply. On 5 August 2019, the applicant requested an extension to 20 August 2019 through his agent. Materially, the Tribunal was informed that:

   I have recently been instructed by the client that his circumstances have since changed as Mr Valeza now has a new sponsor. Given the gravity of the matter, I will need more time to take instructions from my client to provide a complete response to the invitation to comment or respond to information and to provide information.

6. An extension until 16 August 2019 was granted accordingly. On 16 August 2019 the Tribunal received further correspondence, which materially stated:

   Thank you for granting us our request for extension of time to provide information. Unfortunately, we cannot provide further documents on behalf of the applicant due to circumstances beyond the applicant's control. Mr Valeza has been made aware that the Tribunal may make a decision on the review without taking any further action and that he will also lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

7. As such, this matter did not go to hearing and is now being decided on the papers.

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

1. 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) regarding non-compliance with conditions. 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?

1. 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(3)(b) attached to the applicant’s visa. This condition requires that, “if the visa holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days”.

2. The Tribunal has before it an email sent on 17 October 2017 at 5:03pm from Australian Visa Professionals Pty Ltd. Materially, this email states:

   “In accordance with Reg 2.84(3)(a) please be advised that Manuel Versoza VALEZA – (DOB: 11/11/1970) BCC2016/3825229 has ceased employment with COLLINS RESTAURANTS WEST PTY LTD on 11/10/2017”

3. There is no evidence before the Tribunal that the applicant has held a valid nomination since his employment with the sponsor, Collins Restaurants West Pty Ltd, ceased on 11 October 2017. Indeed, it would seem that the correspondence from the applicant’s registered migration agent of 5 August 2019 was mistaken and that the applicant did not have a new sponsor. There is certainly no evidence of a new sponsor before the Tribunal.

4. The Tribunal is satisfied on the material before it that the applicant has not held a valid nomination since 11 October 2017. Flowing from this, the Tribunal is satisfied that the applicant has not been employed in a nominated position for more than 60 days.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists arising from a breach of condition 8107(3)(b). 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

1. 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, noting that no specific matters were raised by the applicant.

2. The Tribunal has had some difficulty in considering the exercise of its discretion as the applicant neither responded to the Department’s notification of intention to consider cancellation, dated 14 May 2018, or the Tribunal’s invitation of 23 July 2019. There is certainly no evidence before the Tribunal of any compelling need for the applicant to remain in Australia, any degree of hardship that might arise through cancellation, or even the circumstances in which the cancellation arose. On the material before the Tribunal, the Tribunal identifies no grounds upon which to exercise its discretion.

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

DECISION

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

Andrew George
Member