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1006221 [2011] MRTA  2665  (17 November 2011)

Last Updated: 25 November 2011

1006221  [2011] MRTA 2665  (17 November 2011)

DECISION RECORD

APPLICANT: Mr Chander Singh

MRT CASE NUMBER: 1006221

DIAC REFERENCE(S): CLF2007/95676

TRIBUNAL MEMBER: T Delofski

DATE: 17 November 2011

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 (Business (Long Stay)) visa.

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 and Citizenship to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116(1) of the Migration Act 1958 (the Act).
2. The Department of Immigration and Citizenship granted the applicant his Subclass 457 (Business (Long Stay)) visa on 7 August 2009. The applicant was notified that a delegate of the Minister was considering cancelling his Subclass 457 visa and the decision to cancel the visa was made on 19 July 2010. The applicant was notified of the decision and his review rights by letter dated 19 July 2010.
3. The delegate cancelled the applicant’s Subclass 457 visa under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer exist because he no longer worked for his original sponsor.
4. The applicant applied to the Tribunal on 27 July 2010 for review of the visa cancellation.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(3) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. Under s.116(1) of the Act, the Minister may cancel a visa if he or she is satisfied that certain specified grounds are made out. These grounds are:
   • any circumstances which permitted the grant of the visa no longer exist
   • the visa holder has not complied with a condition of the visa
   • another person required to comply with a condition of the visa has not complied with that condition
   • if the visa holder has not entered Australia or has so entered but has not been immigration cleared - the visa would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared
   • the presence of the visa holder in Australia is, or would be, a risk to the health, safety or good order of the Australian Community
   • the visa should not have been granted because the application for it, or its grant, was in contravention of the Act or of another law of the Commonwealth
   • in the case of a student visa, the visa holder is not, or is likely not to be, a genuine student or has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
   • a ground prescribed in r.2.43 of the Migration Regulations 1994 (the Regulations) for cancelling the visa applies to the visa holder.
7. If the Tribunal is satisfied that the ground for cancellation exists, it must proceed to consider whether to cancel the visa. However, if the Tribunal is satisfied that a prescribed circumstance exists, it must cancel the visa: s.116(3). The circumstances requiring mandatory cancellation are prescribed in r.2.43(2) of the Regulations. They concern: circumstances in which the Foreign Minister has personally determined that the visa holder’s presence in Australia is or would be contrary to Australia’s foreign policy interests, or whose presence may be directly or indirectly associated with the proliferation of weapons of mass destruction; where the visa holder has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security, within the meaning of s.4 of the ASIO Act 1979; and where the Minister is satisfied that the holder of a Student (Temporary) (Class TU) visa has not complied with certain specified visa conditions.
8. 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, the Tribunal has regard to any matters raised by the visa holder as to why the visa should not be cancelled, government policy guidelines, and any other relevant considerations.
9. The Department’s PAM3 ‘General cancellation powers’ at [32.2] lists the following matters that, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under s.116 of the Act:
   • the purpose of the visa holder’s travel to and stay in Australia
   • if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for, and extent of, the breach. As a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control
   • the degree of hardship that may be caused to the visa holder and any family members
   • the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
   • the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)
   • if cancellation is being considered because of the circumstances set out in r.2.43(1)(la) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457
   • whether there are persons in Australia whose visas would, or may, be cancelled under s.140
   • whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
     • if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
     • whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment
   • if cancellation is being considered because a Student visa holder has breached condition 8202 (that is, on the basis of circumstances set out in r.2.43(2)(b) – whether the breach was due to exceptional circumstances beyond the visa holder’s control
   • in relation to cancellation of a permanent visa, whether the visa holder has formed strong family, business or other ties in Australia
   • any other matters raised by the visa holder.
10. In the present case, the delegate in cancelling the visa was satisfied that the ground provided by s.116(1)(a) existed because he no longer worked for his original sponsor.
11. Section 116(1)(a) provides that cancellation may occur if the Minister is satisfied that ‘any circumstances which permitted the grant of the visa no longer exist’ In reviewing cancellation decisions under s.116(1)(a), the Tribunal must identify the circumstances which formed a basis for the grant, consider whether those circumstances no longer exist and then decide whether to cancel the visa.
12. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang [1999] FCA 84; (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

CLAIMS AND EVIDENCE

13. The Tribunal has before it the Department’s and the Tribunal’s case files relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
14. A hearing was held on 16 December 2010 at which the applicant stated that he had obtained a new prospective sponsor, Punjabi Pty Ltd (the sponsor).
15. On 4 November 2011 the applicant’s representative provided evidence that on 28 October 2011 the Department had approved the sponsor’s application for a business nomination naming the applicant as the approved nominee.

FINDINGS AND REASONS

16. The Tribunal must first decide whether the ground for cancellation under s.116 identified by the delegate has been made out. If satisfied such a ground exists, and it is not a circumstance prescribed in r.2.43, the Tribunal must then decide whether to cancel the visa having regard to all the relevant circumstances.
17. The applicant’s visa was cancelled on the basis that the circumstances which permitted the grant of the visa no longer exist. The relevant circumstances are that he has ceased working for his original sponsor. The applicant has acknowledged that he is no longer employed by his original sponsor and for this reason the Tribunal is satisfied that the circumstances which permitted the grant of the visa no longer exist.
18. For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As the Tribunal has decided that a ground for cancellation exists, and that ground does not involve circumstances that require cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

19. 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 policy guidelines, relevantly:
    • the purpose of the visa holder’s travel to and stay in Australia
    • if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach
    • the degree of hardship that may be caused to the visa holder and any family members
    • the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
    • the visa holder’s past and present behaviour towards the Department
    • if cancellation is being considered because of the circumstances set out in r.2.43(1)(la) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457
    • whether there are persons in Australia whose visas would, or may, be cancelled under s.140
    • whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
      • if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
      • whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment
    • any other matter the visa holder raises.
20. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. In making this decision, the Tribunal has attached most weight to the fact that the applicant has obtained a new employer with an approved sponsorship and an approved nomination which identifies the applicant as the nominee.

DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.
    

T Delofski
Presiding Member