VENERUSO (Migration)

[2018] AATA 4804

VENERUSO (Migration) [2018] AATA 4804 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ALESSANDRO VENERUSO
Mrs ELISA ATTARDI

CASE NUMBER:  1722997

HOME AFFAIRS REFERENCE(S):           BCC2017/2593907

MEMBER:John Cipolla

DATE:27 July 2018

PLACE OF DECISION:  Sydney

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 27 July 2018 at 10:33am

CATCHWORDS
Migration – Cancellation – Subclass 457 (Temporary Work (Skilled)) visa – Applicant ceased to work in his nominated occupation in his most recently approved nomination – Failure to hold a valid nomination for more than 90 consecutive days – Applicant was not the subject of an approved nomination – Breach of condition 8107 – Decision affirmed for the first-named applicant’s visa – No jurisdiction with respect to the second-named applicant

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, Schedule 4

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2017 made by a delegate of the Minister for Immigration and Border Protection 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107 of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the applicants nominating employer advised the Department that the applicant ceased employment with them on 14 February 2017 and that evidence before the Department was that the applicant had ceased to be employed in a nominated occupation for more than 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.

3. Recourse to the Departmental file indicates as follows. 

4. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 4 September 2017.  The NOICC particularised the ground for cancellation and why the Departmental delegate believed that the ground existed, namely the cessation of the applicant’s employment with his nominating business on 14 February 2017 and his failure to hold a valid nomination for more than 90 consecutive days since that time.

5. The applicant responded to the NOICC on 8 September 2017 advising that he needed to obtain legal advice and that he was collecting documents with his employer and would be grateful for an extension of time to provide a response to the NOICC.

6. The delegate consented to the extension of time. On 14 September 2017 the applicant provided the response. He advised that he was initially granted a Subclass 457 visa on 5 October 2015 under the sponsorship of Angilletta Holdings Pty Ltd. The applicant stated that on 27 October 2016 a nomination transfer was approved for him to commence employment with new employers, Mar Mia Holdings Pty Ltd.  The applicant stated that on 15 February 2017 this nominating business closed down. The applicant stated that on 9 March 2017 one of the business owners negotiated a new lease agreement for a new business named Mia Pizzeria. The applicant claimed that once this new entity began trading he continued full-time employment with the newly established entity. The applicant stated that he was aware that his sponsor had changed business names but was unaware that the entity’s change of name was not updated with the Department. The applicant asked the Department what steps he needed to take to rectify the situation.

7. The Departmental delegate considered the applicant’s response to the NOICC and proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 20 September 2017. The delegate noted that the applicant was not the subject of an approved nomination since ceasing employment with his sponsor on 14 February 2017. The delegate noted that the applicant had not recommenced employment with his last approved sponsor and had not lodged a new nomination since ceasing employment with that sponsor on 14 February 2017. The delegate noted that any new sponsoring business would be aware that they needed to be the subject of an approved standard business sponsorship in order to obtain an approved nomination for the applicant and the Departmental records indicated that there was no evidence which indicated that this had occurred. The delegate considered the relevant considerations in order to determine whether or not the visa should be cancelled and proceeded to cancel the applicant’s visa having regard to those considerations.

8. The applicant lodged an application for review with the Tribunal on 25 September 2017.

9. On 26 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 5 October 2015, valid to 5 October 2019, however his visa was cancelled on 20 September 2017. The Tribunal noted that the applicant was sponsored for this visa by Angilletta Holdings Pty Ltd and that on 27 October 2016 his sponsor changed to Mar Mia Holdings Pty Ltd when a Subclass 457 nomination was approved with that business. The letter noted that the applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.

10. The letter noted that the applicant ceased being employed by his sponsoring business on 14 February 2017 and that on 20 September 2017, the date on which the applicant’s visa was cancelled, he had not worked for his sponsor for more than 90 consecutive days. The letter noted that a recent check indicated that no new relevant business nomination had been approved in respect of the applicant since his visa was cancelled. The Tribunal invited the applicant to provide any evidence as to whether or not he agreed that the grounds for cancellation existed and any evidence as to why his visa should not be cancelled. The response to this letter was due on 10 July 2018. On 9 July 2018 the Tribunal received a request from the applicant’s migration for an extension of time to provide a response to the Tribunal’s letter of 26 June 2018. That request was granted and the applicant was notified of the extension of time to provide information to the Tribunal by 24 July 2018. As at 25 July 2018 no response had been received and as a consequence the applicant has lost his right to a hearing.

11. The Tribunal received a submission from the applicant on 26 July 2018 and the Tribunal has taken this information into consideration in its decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has considered the evidence before it.  The Tribunal finds on the evidence before it that the period during which the holder ceased relevant employment has exceeded 90 consecutive days.  The evidence indicates that the applicants sponsor changed to Mar Mia Holdings Pty Ltd on 27 October 2016.  The evidence indicates that this business ceased operations on 15 February 2017 and that the applicant ceased to be employed by his approved sponsoring business on or before 14 February 2017 and that on 20 September 2017, the date in which the applicants 457 visa was cancelled he had not worked for his sponsor for more than 90 consecutive days.

13. As more than 90 consecutive days have passed since the applicant ceased employment with the employer who most recently nominated him, the Tribunal finds that the applicant did not comply with condition 8107(3)(b) that was imposed on his 457 visa. 

14. The applicant has argued that Mar Mia Holdings closed its doors on 15 February 2017 due to the marital breakdown of the owners of the business.  Further to this that one of those owners, Saverio Marando, negotiated a new lease agreement and changed the entity name to Mia Pizzeria with a new ABN number.  The applicant stated that when the new entity started trading (he did not note the date this commenced) that he commenced working full time for this new entity. The applicant argued that it was his view that the ground for cancellation did not exist because he continued to work in the same full time position, at the same business address, in the same skilled occupation and with the same sponsor with only one differential, the change of entity name. 

15. The evidence before the Tribunal indicates that the newly established entity did not seek approval as a standard business sponsor.

16. The Tribunal finds that the evidence indicates that the approved sponsoring business Mar Mia Holdings Pty Ltd ceased operating on 15 February 2017 and that the applicant ceased employment with this business on or before 14 February 2017 and that as at the date of the cancellation of the applicants visa on 20 September 2017, he had not worked for his sponsoring business for more than 90 consecutive days.

17. 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

18. 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’.

19. The applicant is an Italian citizen. He was granted a Subclass 457 visa to work for his approved sponsor and this employment ceased on 15 February 2017.

20. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination. The Tribunal considers that the applicant has had fair opportunity to become the subject of an approved nomination by an approved sponsor. The applicant has not worked for an approved sponsor in an approved occupation since February 2017.

21. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

22. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. For the reasons discussed above, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with Mar Mia Holdings Pty Ltd exceeded 90 days.

23. In relation to the applicant’s past and present conduct towards the Department, there is nothing before the Tribunal to suggest that the applicant has not been cooperative in his dealings with the Department apart from his failure to notify the Department of the cessation of his employment with Mar Mia Holdings Pty Ltd in February 2017. 

24. The Tribunal finds overall that the applicant’s conduct towards the Department and general compliance with visa conditions weigh against cancelling the visa. 

25. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the period during which the applicant ceased employment with the sponsor that most recently nominated him exceeded 90 days.

26. The Tribunal does not consider it the responsibility of the Department or any other authority to notify the applicant about his visa conditions, including the 90 day requirement. Indeed the notification of the grant of a 457 visa letter would have set out the conditions attached to the 457 visa, including condition 8107. Furthermore the Department provides an online facility (Visa Entitlement Verification Online – VEVO) for visa holders to check the status and conditions of their visas. The Tribunal considers it the applicant’s responsibility to be aware of his visa conditions and to comply with them.

27. The applicant’s lack of awareness of his visa conditions weighs in favour of cancelling the visa.

28. The evidence indicates that the applicant ceased working for Mar Mia Holdings Pty Ltd in February 2017 and the Tribunal considers, as discussed above, that the applicant has had sufficient time since then to become the subject of another nomination by an approved business sponsor.

29. The Tribunal gives little weight to the circumstances in which the ground of cancellation arose in favour of not cancelling the visa.

30. No evidence has been adduced which establishes the hardship that may be experienced if the applicant’s visa is cancelled.

31. The Tribunal accepts that if the applicants 457 visa is cancelled, his partner’s visa will be consequentially cancelled under s.140. However the applicant’s partner’s visa was granted on the basis of her being a member of the family unit of the applicant and it is the intended consequence of the legislation that members of the family unit have the same visa status.

32. The Tribunal gives limited weight to the consequential cancellation of the applicant’s partner’s visa.

33. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold a visa to remain lawfully in Australia or he refuses to depart. As indicated above, the applicant will not have to immediately depart Australia if the visa is cancelled and can apply for a further Bridging E visa. The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another Long Stay Business visa (now the TSS visa) onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

34. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

35. The Tribunal acknowledges that most temporary visas, including the Subclass 457 visa, requires applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, the Tribunal is not satisfied on the evidence before it that the applicant will necessarily be affected by the three year exclusion period if his 457 visa is cancelled. The applicant’s 457 visa was cancelled on 20 September 2017. He was granted a Bridging E visa on, 6 October 2017. The Tribunal is satisfied on the evidence that the Bridging E visa was granted to the applicant within 28 days after his 457 visa ceased to be in effect.

36. The Tribunal has had regard to PIC 4013 and considers that the applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116 because the applicant did not comply with a condition of his visa, the visa was not of a subclass specified in Part 2 of Schedule 4. The risk factor in PIC 4014(4)(b) will also not apply to the applicant under PIC 4014(5) if a bridging visa held by the applicant, at the time of departure, was granted within 28 days after a substantive visa held by the applicant ceased to be in effect. In this case, the applicant was granted a bridging E visa within 28 days of his Subclass 457 visa being cancelled. Therefore, if at the time the applicant departs Australia he holds the bridging visa that was granted within 28 days after the substantive visa held by him ceased to be in effect, the risk factor in PIC 4014(5) will not apply to him.

37. On the basis of the above, the Tribunal considers that the applicant may not necessarily be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore.  This consideration weighs in favour of cancelling the visa.

38. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicants have not claimed, that any international obligations would be breached as a result of the cancellation.

39. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

40. 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 applicant. The other 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 those other applicants’ visas 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 visa applicant.

    CONCLUSION

41. In considering the circumstances as a whole, the Tribunal concludes that the applicant’s 457 visa should be cancelled.

    DECISION

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

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

    John Cipolla
    Senior Member