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1402884 [2014] MRTA  1676  (25 July 2014)

Last Updated: 11 August 2014

1402884  [2014] MRTA 1676  (25 July 2014)

DECISION RECORD

APPLICANT: Mr Edwin Lumasag Pausanos

MRT CASE NUMBER: 1402884

DIBP REFERENCE(S): BCC2013/70082

TRIBUNAL MEMBER: T Delofski

DATE: 25 July 2014

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 25 July 2014 at 11:35am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2014 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116(1) of the Migration Act 1958 (the Act).
2. The delegate cancelled the applicant’s Subclass 457 visa under s.116(1) on the basis that . 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 8 July 2014 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
4. 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

5. Under s.116(1) 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): the visa holder has not complied with a condition of the visa. If satisfied that the ground for cancellation is made it 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, as set out in the departmental guidelines, Procedures Advice Manual (PAM3).

Does the ground for cancellation exist?

6. The applicant’s visa was cancelled on the basis of a failure to comply with condition 8107 of the visa: s.116(1)(b). Since the evidence indicates, and the applicant acknowledged at the hearing, that he is no longer employed by his original sponsor, the Tribunal is satisfied that the applicant is in breach of condition 8107 of the visa.
7. For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

8. 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
• 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
• any other matter the visa holder raises.

9. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled. In making this decision, the Tribunal has attached most weight to the applicant’s having obtained an offer of employment with a new sponsor, Merlo Group (NT) Pty Ltd, who has lodged an application for an approved business nomination, naming the applicant as the nominee. Setting aside the cancellation will allow the applicant to lodge a visa application onshore.

DECISION

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

T Delofski
Presiding Member