Ventura (Migration)

[2020] AATA 4383

Ventura (Migration) [2020] AATA 4383 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Geremaih Ancheta Ventura

CASE NUMBER:  2001332

HOME AFFAIRS REFERENCE(S):          BCC2019/2980895

MEMBER:Michael Cooke

DATE:19 October 2020

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 19 October 2020 at 12:47pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class TU) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – victim of workplace assault – sacked after approaching police – financial hardship – new nomination by another sponsor – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (3)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 2020 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) on the basis that the he breached condition 8107. 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 to give evidence and present arguments. The

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

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)(b). 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?

   Section 116 Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (b) its holder has not complied with a condition of the visa;

   (2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   s.116(1)(b) - non-compliance with conditions

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

   Findings and reasons relating to whether the relevant condition has been breached.

8. The applicant (in his oral evidence) has admitted that he did breach the condition but has argued that it was due to ‘factors beyond his control’. He insists was the victim of an assault at his workplace (verified by his doctor) and caused by a work colleague. He reported the matter to the Police which he has verified to the Tribunal. He claims that, as a result of approaching the Police about the assault, he was sacked by his nominating employer – causing him to breach the condition. Thus, he claims the matter was ‘beyond his control’. The Police report has been furnished to the Tribunal. It indicates that his formal request to seek further information about the assault (for the edification of the Tribunal) has been blocked by the Police because, on balance, the Police delegate found that:

   It is essential that information is not disclosed that would have the effect of prejudicing the supply of confidential information to police by witnesses and informants.

9. The Tribunal finds that the applicant has ceased employment with the sponsor and the period during which the applicant ceased employment exceedes 60 consecutive days. Thus, he no longer meets the requirement of subclause 8107(3)(b). Therefore, he has not complied with a condition of his visa.

10. 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 visa should be cancelled.

    Consideration of discretion

11. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·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.

12. The applicant was granted a Temporary Business Entry (Subclass 457) visa for the purpose of working for an approved sponsor in a skilled occupation for which he was specifically nominated to work. He ceased employment in the nominated position with the approved sponsor on 07 June 2019. He has provided a submission in which he argues that he has a compelling need to remain in Australia in order to maintain his family’s financial status. He informs he has found a new nominator.

13. The Tribunal gives this consideration significant weight against cancellation.

    ·the extent of compliance with visa conditions

14. Apart from the actual issue in this review of breach of condition 8107 there is no evidence before the Tribunal of any other non-compliance.

15. The Tribunal gives this consideration some weight against cancellation.

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

16. The applicant has elaborated on hardship issues in a submission to the Tribunal. The assault incident has cost him directly $2000 in medical bills, and he estimates another $10,000 in two (unsuccessful) nominations and one visa application fees. His wife chided him that “he went to Australia to make money and instead it has cost them money”. This effectively sums up the applicant’s financial hardship problem. He has also had the psychological stress of the refusals whilst being away from his family - who are located in the Philippines.

17. The Tribunal gives this consideration significant weight against cancellation.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were ‘beyond the visa holder’s control’.

18. The Tribunal is satisfied, from the evidence before it, that the circumstances in which the ground for cancellation arose were ‘beyond the visa holder’s control’.

19. The Tribunal gives this consideration significant weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

20. The Tribunal is not aware of any adverse information other than not answering the NOICC.

21. The Tribunal gives this consideration significant weight against cancellation.

    ·whether there would be consequential cancellations under s.140

22. Not applicable

    ·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

23. If the visa is cancelled, the applicant will become an unlawful noncitizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia. Additionally, he will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia.

24. The Tribunal gives this consideration significant weight against cancellation.

    ·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

25. The Tribunal finds that there is no information before it to indicate the circumstances of this case are such that they would engage Australia’s international obligations.

26. The Tribunal gives this consideration some weight against cancellation.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

27. Not applicable

    ·any other relevant matters

28. The Tribunal has had the benefit of oral evidence from the applicant in which he laid out the circumstances that befell him one day on a building site. His submitted information has reinforced his claims that the events that day directly led to him being in the position he now finds himself. The event has caused him not only significant financial lost as a husband and father but has also disenabled him from visiting his country and reacquainting himself with his family.  This family issue is now exacerbated by the circumstances of the COVID pandemic. Despite all this the applicant has continued to seek work and has found a nominator to sponsor him.

29. The Tribunal gives this consideration significant weight against cancellation.

30. Considering the circumstances both singly and together, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Michael Cooke
    Senior Member