1505436 (Migration) - [2015] AATA 3376

1505436 (Migration) [2015] AATA 3376 (2 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ronaldo Lomabas Ceballo
Ms Genalin Vidanes Ceballo
Mr Ron-Elijah Vidanes Ceballo
Ms Hannah Gen Vidanes Ceballo
Mr Roniel Ezra Vidanes Ceballo
CASE NUMBER:  1505436
DIBP REFERENCE(S):  BCC2015/666742
MEMBER:Antonio Dronjic
DATE:2 September 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 02 September 2015
at 1:50pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 April 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116 (1)(b) on the basis that he primary applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
Background to the cancellation of the applicant’s visa
The delegate’s decision record of 15 April 2015 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 19 January 2012, the applicant was granted a subclass 457 Business (Long Stay) visa;
·The standard business sponsor who nominated the applicant to work as a E & I Inspector Pipelines in the most recently approved nomination (approved on 11 January 2012) for the visa is McConnell Dowell Constructions Aust. Pty Ltd;
·On 15 March 2014, the sponsoring business informed the Department that the applicant ceased his employment with this company;
·A notice of intention to consider cancellation (‘NOICC’) was issued 10 March 2015;
·On 16 April 2015 the review applicant responded in writing to NOICC. He conceded that he ceased employment with McConnell Dowell Constructions Aust. Pty Ltd on 15 March 2014; stated that he is actively looking for new employment in Australia; explained the circumstances in which the ground for visa cancellation arose and how will he and his family be affected if the visa is cancelled. (Department folios 113-119). He also submitted documentary evidence in support of his statement including various job applications and educational certificates for members of his family.
The applicants applied to the Tribunal on 21 April 2015 for review of the visa cancellation and submitted a copy of the primary decision record.
The applicants appeared before the Tribunal on 25 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicants were represented in relation to the review by their registered migration agent.
At the commencement of the hearing the applicants’ representative submitted:
·Letter from Aquagem Environment dated 17 August 2015 as evidence that the primary applicant ‘is given the opportunity to be employed in our company as Engineering Consultant as soon as the restriction on his employment is lifted up’;
·Offer of undergraduate academic scholarship from Swinburne University extended to Mr Ron Elijah Ceballo (the review applicant’s son) dated 4 February 2015; and
·Statement of results and evidence of enrolment to schools for the applicant’s children.
The Tribunal began the hearing by explaining to the review applicant the role of the Tribunal; and the purpose of the Tribunal hearing. The Tribunal informed the review applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceeded 90 consecutive days.
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.
This is the summary of his oral evidence:
He confirmed his personal details and family composition. He arrived in Australia in May 2012 as a holder of a subclass 457 visa. Currently he holds a bridging visa ‘E’ with no work rights. He confirmed that he ceased employment with McConnell Dowell Constructions Pty Ltd on 15 March 2014. Despite his best efforts, he was unable to find another sponsoring business willing to offer him employment. He confirmed that Aquagem Environment is not an approved business sponsor and that no nomination or sponsorship application has been lodged by this business at the department with the view of sponsoring him for a subclass 457 visa. He stated that there is another company that may have a job for him at the beginning of next year. He stated that he does not have employment contract with this company.
Since March 2014 he has been using his savings in order to sustain his life in Australia. His wife worked as a factory worker until her visa was cancelled by the operation of law. He has approximately $1,000 left in his bank account. He has no relatives in Australia. In Philippines, he owns a family home and has a brother and two sisters. After completing his bachelor in Electrical Engineering he worked mainly overseas. His youngest son is 14 years of age and attends year 8. Daughter is 18 years of age and attends year 12. His oldest son is 19 years of age and because of the visa cancellation, he is unable to continue his studies at Swinburne University.
He confirmed that he received an e-mail from the department advising him of visa grant and stating the conditions attached to his subclass 457 visa. He confirmed his understanding that his visa was subject to 8107 condition. He further confirmed that he received NOICC from the department and provided his written response.
The applicant conceded that he breached condition 8107(3)(b) as the period during which he ceased employment exceeded 90 consecutive days. He stated that loss of job was not his fault and that he did everything he could to find another sponsoring business but was unsuccessful.
The Tribunal explained to the review applicant that, once it is established that he breached the condition of his subclass 457 visa, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I explained what are considered to be relevant circumstances and indicated that I will take into consideration his written response to the department NOICC and documentary evidence submitted is support of his claims. I asked him if there is anything else he wishes to bring to my attention that may be relevant for consideration of visa cancelation.
He stated that his wife is doing voluntary work at Pilipino school and that all members of his family are actively involved in the local church. The applicant stated that the cancellation will cause hardship for him and his family members as they are now settled in Australia and like the life here.
I decided not to take evidence form the applicant’s wife and son and indicated to the applicant that I accept that the members of his family will be affected if the visa is cancelled. I also indicated that I will take into consideration the applicant’s written response to the departments NOICC and documentary evidence submitted to the department with the response.
The applicant’s representative submitted that the decision to cancel the applicants’ visas made by the department was unreasonable and in support of his submissions provided a copy of the decision in Eden v Minister for Immigration and Border Protection [2015] FCA 780. I asked the representative why was the decision made by the Department unreasonable and he submitted that the applicant did not receive any notice from the department that visa will be cancelled. I noted that the applicant in his evidence confirmed that he received NOICC from the department and provided his written response.
The representative requested more time to provide submissions. I noted that the review application was lodged in April 2015. The hearing invitation letter was sent to the applicant on 22 June 2015 and with this letter the applicant was invited to provide any additional documents or information he may wish to rely upon by 18 August 2015. I noted that the applicant’s representative could and should have provided submissions prior to the tribunal hearing.
I indicated that I will take into consideration any submissions or documentary evidence submitted to the tribunal prior to making my decision.
Following the hearing, I instructed the officers of the Tribunal to contact the applicants’ representative and inform him that I will not make my decision before 1 September 2015 and will consider further submissions and/or documentary evidence submitted to the tribunal prior to 5 pm on 1 September 2015.
On 1 September 2015, the applicant’s representative submitted the following documents:
·Report of Mr Ronaldo Lomabas Ceballo to the Sponsor Monitoring Unit – VIC (SMU) in relation to the cessation of his employment with his sponsor/employer dated 26 May 2014;
·Reply of SMU to Mr Ceballo’s report, dated 26 May 2014, confirming that his report was received by the said unit;
·Payslip of Mr Ceballo for the month of March 2014;
·ATO notice of assessment issued to Mr Ceballo for the period ended 30 June 2014;
·NAB bank statement for the month of March 2014, which shows that at the time Mr Ceballo had sufficient funds to support the daily needs as well as the education of his children;
·Current NAB account summary as of 01 September 2015, which shows that Mr Ceballo has sufficient funds to support the studies of his wife and children;
·MLC Super 2014-2015 annual statement for Mr Ceballo;
·Holmes Institute interim transcript for applicant’s wife, Mrs Genalin Ceballo;
·Holmes Institute letter of offer for Mrs Genalin Ceballo;
·Swinburne University unofficial transcript for applicant’s son, Mr Ron-Elijah Ceballo;
·Swinburne University letter of offer for Mr Ron-Elijah Ceballo; and
·Letter from the Principal of Melton Christian College in support of applicant’s request to allow her daughter to complete her studies in Australia.
In his submissions, the applicant’s representative argued that cancellation of Mr Ceballo’s visa was unreasonable because the time that elapsed between the date when Mr Ceballo informed the department of the cessation of his employment on 26 May 2014 and the time immediately before the Department of Immigration and Border Protection (DIBP) issued the notice of intention to consider cancellation of his visa on 10 March 2015 was too long. He further argued that the fact that the DIBP did not require Mr Ceballo and his family to depart Australia after the expiry of the 90-day grace period provided by law justified the expectation of Mr Ceballo that his request to allow his children to complete their studies in Australia would be granted.
Finally, the representative submitted that, in the case of Eden v MIBP, applying the decision in Minister for Immigration and Citizenship v Li, the Court ruled that the decision-maker in exercising a discretionary authority should not only do so according to law but in accordance with reason as well. The applicant’s only hope now is the kind generosity and understanding of the Tribunal, that his case be considered not only according to law but in accordance with reason as well.
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
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?
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
In this instance condition 8107 was attached to the applicant's visa, which was granted on 19 January 2012, and which, but for its cancellation, was valid to 19 January 2016 2016
Based on the evidence before it, including the oral evidence from the review applicant, the Tribunal finds that the applicant ceased employment with McConnell Dowell Constructions Pty Ltd on 15 March 2014. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).
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
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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have 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 that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant. It has also had regard to the oral evidence from the applicant at the hearing.
The purpose of the visa holder’s travel to and stay in Australia
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 Tribunal finds that the purpose of the review applicant’s stay in Australia was to work as E & I Inspector Pipelines for McConnell Dowell Constructions Aust. Pty Ltd on a temporary basis. The applicant was unfortunate to lose his job in March 2014. The sponsoring company informed the department of cessation of the applicant’s employment on 15 March 2014. I accept that the applicant did everything he could to find another sponsoring employer. According to his own evidence, he was not successful despite being given almost 12 months before the department initiated cancellation procedure. As of the day of my decision the applicant is not employed or has found an Australian company willing to sponsor and nominate him for a position within their business. It is uncertain if and when he will be able to do so.
As explained at the hearing, the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia with his family and look for employment opportunities for more than 12 months. The purpose 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. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on 15 March 2014 and he has not found a new sponsor at the time of decision. I give significant weight to this consideration.
The reason for and extent of the breach
The review applicant conceded in his evidence that he received the visa grant letter from the Department containing explanation of the conditions imposed on 457 visa. According to his oral evidence, he was aware of the condition 8107 being imposed on his visa. He was represented by a migration agent during the review process. The Tribunal is satisfied on the evidence before it that the review applicant was aware of the conditions imposed on his 457 visa.
The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 15 March 2014. I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach, however, by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, on this date, the applicant had already ceased employment for more than 12 months. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after 12 months since the original cessation of employment represents a significant breach of condition 8107.
Past and present conduct of the visa holder towards the department

I accept that the applicant has not previously breached visa conditions and has been co-operative with the Department.
Degree of hardship that may be caused; whether there would be consequential cancellations under s.140
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.
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.
I accept that the applicant and his family have been living in Australia since 2012 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 be significant. I do not accept that the applicant and his wife would not be able to re-establish themselves in the Philippines, given their qualifications, employment background and employment experience. According to his evidence, they own a family home in the Philippines.
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 her studies in Australia.
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 would have ceased in January 2016 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.
If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors
This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
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).
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
There is no evidence before the Tribunal regarding this matter.
Any other relevant matters raised by the visa holder
In his submissions, the applicant’s representative argued that cancellation of Mr Ceballo’s visa was unreasonable because the time that elapsed between the date when Mr Ceballo informed the department of the cessation of his employment on 26 May 2014 and the time immediately before the Department of Immigration and Border Protection (DIBP) issued the notice of intention to consider cancellation of his visa on 10 March 2015 was too long.
There is nothing before me to indicate that the visa cancellation was unreasonable. According to the evidence before me I am not satisfied that department acted improperly. On the contrary, the cancellation process commenced almost a year after the applicant breached the visa condition. This, if anything, indicates that the department was sympathetic to the applicant’s circumstances and has allowed him additional time to find a new employer before proceeding with the cancellation.
If was also argued that the fact that the DIBP did not require Mr Ceballo and his family to depart Australia after the expiry of the 90-day grace period provided by law justified the expectation of Mr Ceballo that his request to allow his children to complete their studies in Australia would be granted. I do not accept this argument as there is nothing before me to indicate that the Department undertook not to proceed with the cancellation until Mr Ceballo’s children complete their studies in Australia.
Finally, the representative submitted that, in the case of Eden v MIBP, applying the decision in Minister for Immigration and Citizenship v Li, the Court ruled that the decision-maker in exercising a discretionary authority should not only do so according to law but in accordance with reason as well. The cited case deals with visa cancellation on character ground (s.501) and not s116 and can be distinguished on this ground alone. In addition, in the preceding paragraphs I explained the reasons for exercising discretionary authority in the way I did. Accordingly I do not give much weight to these submissions.
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
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Antonio Dronjic
Member