1501052 (Migration)

[2015] AATA 3368

1501052 (Migration) [2015] AATA 3368 (7 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Glenn Talania
Mrs Leslie Talania
Mr Glenyl Talania
Mr Brixson Talania
Miss Crystel Talania

CASE NUMBER:  1501052

DIBP REFERENCE(S):  BCC2014/2851150

MEMBER:Antonio Dronjic

DATE:7 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 September 2015

at 12:12pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 January 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(g) on the basis that the first named applicant’s sponsor (La Naval Pty Ltd) was cancelled and barred for 3 years under s.140M of the Act. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. According to the primary decision record provided to the Tribunal by the review applicant, the first named visa applicant was granted a subclass 457 Business (Long Stay) visa on 24 May 2012 and was valid until 21 January 2015. The standard business sponsor who nominated the applicant in the most recently approved nomination (approved on 10 April 2012) for the visa was La Naval Pty Ltd. The occupation listed for the first named visa applicant in the most recently approved nomination is ICT Customer Support Officer (ANZSCO 313112).

5. As a result of monitoring site visits and interviews conducted by the Department, the business sponsor was barred and sponsorship cancelled under s.140M on 23 October 2014.

6. A notice of intention to consider cancellation (‘NOICC’) was e-mailed by the Department to the review applicant on 28 October 2014. On 7 November 2014, the applicant’s representative provided the response to NOICC arguing that the applicant complied with the terms and conditions imposed on his visa; performed his job in accordance with the position description; that cancellation is unfair and unjust; that the applicant instituted legal action before Fairwork Australia for damages against his former employer for underpayment of his wife’s salary and that his three dependent children are attending school.

7. The delegate proceeded to cancel the visa applicant’s visas on 21 January 2015.

   The Review Application

8. The applicants applied to the Tribunal on 23 January 2015 for review of the delegate’s decision and with their application submitted a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.

9. On 8 May 2015, the applicants’ representative submitted the following documents:

   ·Copy Notice of Intention to take action (NOITTA) issued by the department on 17 March 2014 to the applicant’s sponsor;

   ·Copy time cards, pay slips and summary of payments for Leslie Talania;

   ·Statutory Declaration of Glenn Talania dated 7 May 2015 outlining the applicant’s visa history; stating that he was required by his employer to do tasks that were outside the position description of an ICT support officer which included cleaning the factory, toilets and kitchen; that he also worked as a machine operator; that he worked in the business owners’ garden every Saturday without pay; that the immigration fees were deducted from his salary to cover business expenses for sponsorship and visa applications; that his wife Leslie was grossly underpaid; that she suffered personal injury due to unsafe work practices at La Naval Pty Ltd and that his wife Leslie was babysitting for the business owner without being paid for it. He further stated reasons why he and his family cannot return to Philippines; pleaded that the Australian government show compassion; stated that his wife is due to give birth in September 2015 and that he and his wife fully cooperated with the Department in their investigations of La Naval Pty Ltd.

   ·Copy text messages he received from his employer.

10. The applicant appeared before the Tribunal on 12 May 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. Before commencement of the hearing, the applicant’s representative submitted documentary evidence concerning Ms Talania’s pregnancy.

11. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The Tribunal further explained that the review applicant’s visa was cancelled under s.116 (g) of the Act as the delegate concluded that the ground prescribed in r.2.43 (1)(iv) applied in this case. According to the primary decision record, the applicant’s sponsor, La Naval Pty, was barred and sponsorship cancelled on 23 October 2014. The Tribunal informed the applicant that the decision to cancel and bar La naval Pty Ltd is subject to merits review before this Tribunal.

12. The Tribunal raised additional issue with the applicant. In his statutory declaration of 7 May 2015 he submitted to the Tribunal, the applicant stated that, during his employment with La naval Pty Ltd, he was not working only in his nominated occupation (ICT Customer support officer) but also as a cleaner and a machine operator. The Department records indicate that his visa was subject to 8107 condition which relevantly prescribes in 8107(1)(b) that, if the visa was granted to enable the holder to be employed in Australia, the holder must not work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. Accordingly, the Tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116(1)(b).

13. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal 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.

14. This is the summary of the applicant’s evidence:

    He came to Australia in March 2010 as a holder of a student visa. He completed an Advanced Diploma in IT in January 2012. He is married, has three children and his wife is currently pregnant with their fourth child. His two sisters and parents live in the Philippines. He has no relatives living in Australia. His wife has two sisters in the Philippines and one sister who is an Australian citizen and who lives in Brisbane.

    Both he and his wife Leslie commenced their employment at La Naval Pty Ltd (the sponsor) in late 2010 as process workers. Both worked as part time employees. Soon after completing his Australian studies, he was sponsored by La Naval Pty Ltd and nominated to work as an ICT Customer support officer. He commenced his full time employment in March 2012.

    He worked night shifts with cleaners and six other employees who worked on the production line. He did not have supervisor but did everything that was required of him by Rose and Charlie. They are the owners of the sponsoring business. He would first check the computers and resolve issues related to IT. After completing this task, he would work either as a cleaner or machine operator for the remaining time of his shift. The IT work would on average take between 4-6 hours of his shift. Sometimes he worked full 8 hours as an ICT support officer.

    He confirmed that his subclass 457 visa was granted in May 2012 and that he received a visa grant notification letter from the Department. He stated that he read the visa grant notification letter which contained explanation of the visa conditions imposed on his visa. However, he did not understand that he was not allowed to work for his sponsor in an occupation that is inconsistent with the position or occupation in relation to which the visa was granted. He reiterated that he did not question orders from his employer and did any work Rose or Charlie would ask him to do. This arrangement lasted two years, until March 2014, at which time he ceased the employment with the sponsoring business.

    He met the owners of the sponsoring business through mutual friend. He and his family were never friends with Charlie and Rose. He stated that he used to borrow money from the business during the time he was working and studying in Australia. These loans were based on verbal agreements and money was repaid by instalment deductions from his salary.

    From March 2012, when he commenced working as an ICT officer, he stopped borrowing money from his employer. His annual wages were around $60,000 and his wife, who was working for the same company as a process worker, was making between $9,000 and $10,000 per year. He denied ever borrowing money from the sponsoring company for payment of school fees, bringing his two sons from Philippines or for the payment of traffic fines.

    He reiterated that that the immigration fees were deducted from his salary to cover expenses made by the sponsoring business related to his sponsorship and visa applications but denied ever signing written agreement related to repayment of immigration fees. He believes that the amount related to immigration fees was around $3,000. He stated that Charlie offered to finance a new car for him and his family. Charlie told him that he will not be able to get a loan from the bank for 7 years after arriving to Australia and for this reason he did not try to secure a car loan himself.

    He stated that legal proceedings he referred to in his statutory declaration of 7 May 2015 are not finalised but that settlement proposal was made.

    When questioned, the applicant stated that he currently does not work. He explained that the Department granted him and his family bridging visas ‘E’ with work rights in February 2015. One of his sons is employed and supports the family. His wife is pregnant and cannot work. He is trying to find any job. He attempted, on several occasions, to find the new sponsoring business but was unsuccessful as most businesses are seeking to employ Australian residents. He conceded that as of the day of this hearing, he has not been sponsored or nominated for a subclass 457 visa by an Australian employer.

15. The Tribunal explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal 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.

16. I invited the applicant to state if there any other circumstances he wants me to consider, apart from those stated in his statutory declaration of 7 May 2015. He stated that both he and his wife were victim of abuse inflicted upon them by La Naval Pty Ltd and that his aim is to provide a good life for his children in Australia.

17. Upon my invitation, the applicant’s representative stated that the applicant conceded that the ground for cancellation exists; that he fully cooperated with the Department in their investigation of the sponsoring business and that they intend to approach the Minister and ask him to exercise his discretion under s.351 of the Act if the applicant is unsuccessful with his review application. I noted the lack of submissions relevant to the request for referral of the matter to the Minister, explained that Ministerial intervention is not an issue arising out of the primary review and that the applicant is at liberty to approach the Minister himself, regardless of whether the Tribunal makes such recommendation or not.

18. On 6 August 2015, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting his comments and/or response to the information that the Tribunal affirmed decision made by the Department to cancel and bar the sponsoring business.

19. On 3 September 2015, after he was granted an extension of time to provide his comments and /or response, the applicant’s representative submitted Statutory Declaration signed by the applicant on 3 September 2015 stating that ‘now that the decision has been reached to ban and cancel La Naval I am pleased that justice has been served’; reiterating that he is innocent victim; stated that his children will be disadvantaged in that they have to return to Philippines (Tribunal folios 86-87).

20. 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

21. 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(g). 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?

22. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43 (1)(l)(IV) is relevant.

23. Information in the delegate's decision record, which was submitted by the review applicant to the tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination for the visa, La Naval Pty Ltd, had its approval as a Standard Business sponsor cancelled on 23 October 2014 under section 140 M (1)(a).

24. La Naval Pty Ltd sought the review of the primary decision. On 6 August 2015 the Tribunal affirmed the decision to cancel and bar the sponsoring employer and informed the applicant of its decision. Responding to the Tribunal’s s.359A letter the applicant stated that he is ‘pleased that justice has been served’.

25. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) 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

26. 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’.

27. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

28. The guidelines include factors such as the purpose of the applicant's travel to Australia; the degree of hardship that may be caused by the cancellation to the applicant and other family members; the circumstances in which the ground for cancellation arose; the applicant's past and present behavior towards the Department; whether the cancellation would lead to removal in breach of Australia's obligations under relevant international agreements, including Australia's non-refoulement obligations; and any other relevant matters raised by the applicant. The Tribunal considered matters raised by the review applicant in his written submissions and oral evidence given during the Tribunal hearing.

    The purpose of the visa holder’s travel to and stay in Australia

29. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The purpose of the visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.

30. The purpose of the applicant's stay in Australia had been to work for the sponsor as an ICT Customer Support Officer and to reside temporarily for that purpose. The sponsorship was cancelled on 23 October 2014. According to the review applicant evidence, no sponsorship or nomination was secured from any other Australian business. The review applicant’s visa was cancelled for reasons beyond his control and the cancellation is therefore an unfortunate one. The Tribunal has weighed this against the fact that the review applicant had ample time to find a new sponsoring employer.

    The degree of hardship that may be caused to the visa holder

31. The applicant claims that the visa cancellation would cause hardship to himself and his family as they are now settled in Australia and they like the life here. The applicant also claims that the cancellation would impact his children and their schooling in Australia.

32. I considered that the applicant's wife and children are likely to be affected as their visas may be consequentially cancelled under s.140 if the cancellation of the applicant's visa is affirmed.

33. I accept that the applicant and his family have been living in Australia since 2010 and would like to remain in Australia. I also accept that leaving Australia may involve some hardship to the applicant and his family, but I am of the view that this hardship would not be significant. I do not accept that the applicant and his wife would not be able to re-establish themselves in the Philippines where majority of their family is currently living, given their qualifications, employment background and employment experience.   

34. In relation to the applicant’s children, I have considered the claim that the applicant’s children want to complete their schooling in Australia. I am not satisfied that the visa cancellation would cause significant hardship if their studies were disrupted. I consider that the purpose of a Subclass 457 visa is not to enable family members to study in Australia. It is open to the applicant’s children to apply for a student visa if they want to continue their studies in Australia.

35. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant and his family came to Australia on temporary visas which create no expectation of remaining in Australia permanently. The 457 visas have ceased in January 2015 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis or to allow family members to study in Australia. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

    The visa holder’s past and present behaviour towards the department

1. I accept that the applicant has been co-operative with the Department.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

2. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

3. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

   The impact on any victims of family violence

4. There is no evidence before the Tribunal regarding this matter.

   Any other relevant matters raised by the visa holder

5. The Tribunal considered the review applicant’s claims that he always complied with his visa conditions and notes that his visa was not cancelled for breach of visa conditions and does not regard this claim to be a significant factor in considering exercise of its discretion.

6. However, in his evidence, the applicant admitted that, during his employment with La Naval Pty Ltd, he was not working only in his nominated occupation (ICT Customer support officer) but also as a cleaner and a machine operator. He confirmed in his evidence that he received and read the visa grant notification letter from the Department which contained explanation of the visa conditions, including condition 8107 that was imposed on his visa. I do not accept the applicant’s explanation that he did not understand that he was not permitted to work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. He previously held Student visa that was subject to various visa conditions. He was represented by a migration agent both during the visa application and the review process. The Tribunal is not satisfied on the evidence before it that the review applicant was unaware of the conditions imposed on his 457 visa.

7. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

8. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

9. The Tribunal has no jurisdiction with respect to the other applicants.

   Antonio Dronjic
   Member