Watada (Migration)

[2018] AATA 2420

Watada (Migration) [2018] AATA 2420 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chiyuki Watada

CASE NUMBER:  1610639

DIBP REFERENCE(S):  BCC2016/167725

MEMBER:Kira Raif

DATE:19 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for the Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa:

· cl. 461.225 of Schedule 2 to the Regulations.

Statement made on 19 June 2018 at 4:32pm

CATCHWORDS

Migration – New Zealand Citizen Family Relationship (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa – Subclass 457 visa cancelled – Breach of previous visa conditions – No work condition – Misinterpretation of Department’s advice – Decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cl 461.225 Schedule 8 Condition 8107

CASES

Kim v Witton (1995) 59 FCR 258

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 July 2016 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Japan, born in August 1977. She applied for the visa on 12 January 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 461.225 because the delegate was not satisfied the applicant complied substantially with the conditions of her previously held visa. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. One of the criteria to be satisfied at the time of the application is clause 461.225. Relevantly, it requires the applicant who has made an application in Australia to have complied substantially with the conditions that applied to the last substantive visa held by the applicant and any subsequent bridging visa.

   Did the applicant comply substantially with visa conditions?

5. The applicant provided to the Tribunal a copy of the decision record. It indicates that the applicant previously held a Temporary Work (Skilled) Subclass 457 visa which was valid until 26 June 2018 and was subject to condition 8107 (Work Limitations). That visa was cancelled on 5 February 2016 for breach of condition 8107.

6. There is no evidence before the Tribunal to indicate that the applicant was the holder of the Subclass 401, 402 or 420 visa and the Tribunal finds that Condition 8107(4) did not apply to her. For the purpose of Condition 8107(1) and (2), the applicant must either not cease to be employed by the employer in relation to which the visa was granted or, for the purpose of Condition 8107(3)(b), the applicant must not cease employment for a period exceeding 90 consecutive days.

7. The primary decision record indicates that on 21 October 2015 the applicant’s sponsor CDS Trading Pty Ltd advised the Department that the applicant ceased employment from 16 October 2015. The applicant confirmed that information in a telephone conversation with the Departmental officer. The Tribunal finds that the applicant would not have complied with condition 8107(1) and (2).

8. The applicant’s submission to the delegate of 23 March 2016 outlines her previous employment. The applicant states that her Subclass 457 visa was granted in June 2014. She started her employment with the sponsor on 1 July 2014 and the employment ceased on 16 October 2015. During this period, she only worked in the nominated occupation for the sponsor. The applicant states that the non-compliance occurred from January 2016 and until the cancellation of the visa in February 2016 and the percentage of non-compliance is 23%. The Tribunal does not consider that the legislation requires a mathematical calculation of the percentage of non-compliance. Either the applicant was employed in the nominated occupation with her sponsor or she was not. It is not appropriate in the Tribunal’s view to calculate the period when she was and was not employment and to weigh the period of non-compliance against the period of compliance in assessing whether there was substantial compliance with visa conditions.

9. In oral evidence to the Tribunal the applicant confirmed that her last substantive visa was a subclass 457 visa. She said that on 16 October 2015 she ceased her employment with the sponsor. At that time she was advised by the Department that she had three options, finding another employer within 90 days, leaving Australia or applying for another visa. The applicant said that she made the application for the present visa in January 2016, within the 90 days and she followed the advice given by the Immigration. The applicant referred to the visa grant letter and said this letter also advised that if she ceased employment, she could apply for another visa within 90 days and she did not believe she was in breach of any visa conditions.

10. The Tribunal accepts that the applicant made the present visa application within 90 days of ceasing employment. However, her subclass 457 visa did not cease upon making an application for the New Zealand Family Relationship visa. The Subclass 457 visa was in effect until its cancellation on 5 February 2016 and until that time, the applicant was subject to condition 8107. Further, the applicant provided to the Tribunal a copy of the Bridging A visa grant letter which indicates that the Bridging A visa which was granted upon the lodgement of the present application was also subject to condition 8107. That is, even though the present application was made within 90 days of the applicant ceasing employment, the condition continued at least until the Bridging E visa was granted in February 2016 and the applicant ceased employment in October 2015. The Tribunal finds that the applicant ceased employment for more than 90 consecutive days while holding visas that were subject to condition 8107. The Tribunal finds that the applicant did not comply with condition 8107 of her last held substantive Subclass 457 visa and also the subsequently held Bridging A visa.

11. The issue before the Tribunal is whether there was substantial compliance with condition 8107. In Kim v Witton Sackville J considered the relevant circumstances in that case as including:

    ·the nature of the breach of condition;

    ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

    ·whether or not the applicant deliberately flouted the condition; and

    ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

12. The Tribunal has considered these factors, which are not intended to be exhaustive.

13. The breach occurred when the applicant ceased to be employed with the nominating company while holding a Business visa. The Tribunal considers the breach to be quite significant, given that the purpose of the Business visa is to facilitate employment for the nominating company and such employment had ceased. The Tribunal also acknowledges the applicant’s submission that she worked for the nominating company for a period exceeding a year before ceasing employment.

14. The Tribunal places significant weight on the fact that the applicant had taken steps to rectify the situation. The Tribunal accepts the applicant’s evidence that upon ceasing employment, she acted on advice from the Department indicating that she could make another visa application within 90 days and she had done so. The Tribunal accepts that the applicant is likely to have been misled by her interactions with the Department and genuinely believed she was following the Departmental directions. The Tribunal does not consider that the applicant had deliberately flouted the condition – which did allow the cessation of employment for up to 90 days – and the Tribunal also acknowledges that the applicant may have failed to appreciate that she was in breach as a result of her interactions with the Department.

15. Having considered the totality of the circumstances, the Tribunal has formed the view that despite the breach, there was substantial compliance with condition 8107. There is no suggestion that the applicant had breached any other condition. The Tribunal is satisfied the applicant meets cl. 461.225.

16. The applicant requested the Tribunal to refer the matter to the Minister. Having found that the applicant meets the above requirement for the grant of the visa, it is unnecessary for the Tribunal to consider the applicant’s request.

    CONCLUSION

17. Given the findings above, the Tribunal remits the matter with a direction that the applicant meets cl. 461.225

    DECISION

18. The Tribunal remits the application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for the Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa:

    · cl. 461.225 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member