Wellington (Migration)

[2018] AATA 3500

Wellington (Migration) [2018] AATA 3500 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edward Wellington

CASE NUMBER:  1710432

HOME AFFAIRS REFERENCE(S):           BCC2017/933195

MEMBER:John Cipolla

DATE:9 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2018 at 10:27am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Breach of employment requirements – Ceased employment for more than 90 days – Sufficient time to find another nomination – Hardship – Australian born child – No evidence of applicant’s relationship with child – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 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 standard business sponsor who nominated the applicant in his most recently approved nomination for a Subclass 457 visa was Hudson Global Resources (Aust) Pty Ltd whose nomination was approved on 17 March 2014. The delegate noted that information before the Department indicated that the applicant ceased employment with Hudson Global Resources (Aust) Pty Ltd, effective 5 October 2016. The Department concluded that the applicant had ceased to be employed in a nominated occupation for more than 90 consecutive days. The delegate determined having regard to relevant considerations that the visa should be cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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 affirmed.

   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?

7. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 18 April 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 5 October 2016 and his failure to be the subject of an approved nomination for more than 90 consecutive days since that time.

8. The applicant provided a response to the NOICC on 1 May 2017.  The Departmental delegate’s decision record indicates that due to the incorrect file format for the documents provided by the applicant in response to the NOICC the delegate was unable to access the applicant’s response. The applicant was notified by email of this problem and given a further 2 working days to provide a response to the Department in the correct format, no response was forthcoming.

9. The delegate proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 11 May 2017. The delegate noted that the most recently approved nomination for the visa was with Hudson Global Resources (Aust) Pty Ltd and that the evidence before the Department indicated that the applicant ceased employment with the sponsor effective 5 October 2016.  The delegate went on to find that the applicant had not complied with the requirements of condition 8107(3)(b) which was attached to his visa as he had ceased employment with the sponsor for a period exceeding 90 consecutive days.

10. The applicant lodged an application for review with the Tribunal on 16 May 2017.

11. On 25 June 2018 the Tribunal wrote to the applicant inviting him to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The Tribunal in its letter noted that the applicant had been granted a Subclass 457 visa on 17 March 2014. The Tribunal noted that this visa was valid until 11 May 2017.  The letter noted that the applicant had been sponsored by Hudson Global Resources (Aust) Pty Ltd.  The letter noted that on 18 April 2016 the sponsor changed to Profusion Pac Pty Ltd when a Subclass 457 nomination was approved.  The letter noted that the applicant had ceased employment with the sponsoring business on or before 31 October 2016 and that on 11 May 2017, the date the applicants visa was cancelled he had not worked for his sponsor for more than 90 consecutive days. The letter noted there was no evidence to indicate that the applicant had recommenced employment with the sponsor and that a recent check of Departmental records indicated that no new relevant business nominations had been approved in respect of the applicant since his visa had been cancelled. The Tribunal gave the applicant an opportunity to comment on whether or not he agreed that the grounds for cancellation of his visa existed and to provide information pertaining to the relevant considerations as to whether or not the applicant’s visa should be cancelled. The applicant was required to provide a response to the Tribunal by 9 July 2018. As at 7 August 2018 no response has been provided and the Tribunal is able to proceed to decision based on the evidence before it.

    FINDINGS AND REASONS

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.

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. 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

15. 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’.

16. The applicant was granted a Subclass 457 visa to work for his approved sponsor and this employment ceased on or before 31 October 2016.

17. 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 October 2016.

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

19. 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 Hudson Global Resources (Aust) Pty Ltd exceeded 90 days.

20. 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 his sponsoring employer in October 2016. 

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

22. 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.

23. 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 days 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.

24. The evidence indicates that the applicant ceased working for Hudson Global Resources (Aust) Pty Ltd in October 2016 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.

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

26. Some evidence has been adduced which establishes the hardship that may be experienced if the applicant’s visa is cancelled.  The Tribunal was provided with copies of the responses forwarded to the Department by the applicant in response to the NOICC but not able to be accessed by the Departmental delegate prior to the cancellation decision.  The response at folio 20 of the Tribunal file indicates that the applicant has been in a relationship with an Australian citizen Karina Lopez and that there is a child of the relationship Asante James Lopez-Wellington who was born in Sydney on 17 April 2010. There is no updated evidence pertaining to the nature of that relationship or the relationship and responsibilities that the applicant has towards his Australian born son. The submission in response to the NOICC provided in May 2017 indicates that at that time the applicant’s partner and the applicant did not live together for religious reasons as the applicant’s partner was a Jehovah’s Witness. The applicant concedes in the submission that he provided to the Department that he had not been able to obtain a further 457 nomination at that point in time. The Tribunal as stated does not have updated information pertaining to the applicant’s current circumstances but acknowledges that there would be some hardship experienced by the applicant if the visa was cancelled because of these factors and the Tribunal gives some weight to these factors with regard to not cancelling the applicant’s visa.

27. The Tribunal has also had regard to the mandatory legal consequences of cancellation.  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 Temporary Work Skilled 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.

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

29. In relation to consideration regarding international obligations the Tribunal, as has been noted, has evidence before it that the applicant has an Australian born son, who is now 8 years old. There is no evidence beyond May 2017 pertaining to the applicant’s relationship with his son, any financial commitments that the applicant has towards his son in terms of child maintenance and there is no clear evidence before the Tribunal pertaining to the applicant’s relationship with the mother of his son.  There is no current evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

30. 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.

    CONCLUSION

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

    DECISION

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

    John Cipolla
    Senior Member