1505747 (Migration)

[2016] AATA 3713

1505747 (Migration) [2016] AATA 3713 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Maricar Virata
Mr Rolando Gagate

CASE NUMBER:  1505747

DIBP REFERENCE(S):  BCC2015/754664

MEMBER:Don Lucas

DATE:11 April 2016

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 second named applicant.

Statement made on 11 April 2016 at 2:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107 which had been placed on a subclass 457 visa granted to the applicant on 12 December 2012. 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 applicants appeared before the Tribunal on 16 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Berlin Guerrero, who works with a non-profit organisation providing written submissions on the applicant’s behalf.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Cebuano and English languages, whose services were generally not required for the hearing discussion.

5. 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 second named applicant’s visa was 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 the second named applicant’s visa 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.

6. At a hearing scheduled in this matter on 16 June 2015, the Tribunal explained the jurisdictional provisions to the applicants. No submission was made that the Tribunal had any jurisdiction in relation to the second named applicant.

7. The Tribunal accordingly finds that as no decision was involved in the visa cancellation of the second named applicant under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

8. 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

9. 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?

10. 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 requires amongst other matters that, under 8107(3)(b) that, if the review applicant as a subclass 457 visa holder ceases employment, the period in which she ceases employment must not exceed 90 days.

11. In the present case, the applicant had been nominated by NSW Motel Management Services Pty Ltd, a standard business sponsor, to perform the occupation of the Hotel or Motel Manager. Following the nomination approval, on 12 December 2012 a visa was granted to the first named applicant as primary visa holder and to the second named applicant as a member of her family unit. NSW Motel Management Services Pty Ltd subsequently notified the Department that the applicant had ceased employment on 13 May 2014.

12. On 26 March 2015 the applicant provided detailed submissions concerning the circumstances of her own and her husband’s work for the sponsor which had involved highly exploitative conditions and had resulted in termination of her own employment by the sponsor in circumstances which she considered amounted to an unfair dismissal. These details are described below. However, it is not disputed by the applicant that the applicant ceased working for her sponsor following determination on 13 May 2014, that she has not returned since, and that she is therefore in breach of condition 8107(3)(b) of her visa. 

13. 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

14. 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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant was granted a subclass 457 visa on 12 December 2012 for a four-year period originally ending on 12 December 2016, the applicant subsequently arriving on 8 February 2013. The purpose of the applicant’s visa grants and stay in Australia was to be employed by a standard business sponsor, NSW Hotel Management Services Pty Ltd T/A Comfort Inn Country Plaza Halls Gap, in order to perform an occupation nominated for the purposes of the subclass 457 visa program, namely Hotel/Motel Manager.

16. As noted above, the applicant’s employment with her last standard business sponsor ceased on 13 May 2014. Neither in the 90 days following the cessation of this employment or at any point subsequently has the applicant secured employment or any firm offer of employment in the business of another standard business sponsor to perform in a position capable of nomination in the subclass 457 visa program. Although the applicant has regained permission to work and is presently employed, this is not in an occupation listed in the relevant Gazette for the subclass 457 visa program.

17. The applicant has provided evidence that she is in discussions with her current employer, which operates a franchised branch of the Mantra Hotel business, concerning future nomination in the subclass 457 program. The applicant commenced employment with this business on 29 December 2015 in a lower skilled occupation which is not specified for the purposes of the subclass 457 program. The businesses strict policies require the applicant to serve a six-month probationary period before any consideration can be given to nomination of the applicant for a position such as hotel/motel manager.

18. As both the prospect of the applicant being nominated for a position within the subclass 457 visa scheme remains undetermined, as does the outcome of any application for approval of such a nominated position. The Tribunal considers that a prospect of this nature is not sufficiently concrete to provide a basis for the applicant’s visa not to be cancelled.

19. In its consideration in this regard, the Tribunal places significant weight on the purposes of the subclass 457 visa program, which is intended to allow Australian businesses having the status of standard business sponsor to nominate non-citizens to perform skilled work in a limited range of occupations allowable in this visa program. The applicant’s visa was granted on 12 December 2012 for a four year period ending on 12 December 2016. The Tribunal considers that any decision having the effect of reinstating the applicant’s subclass 457 visa in circumstances where she does not have a current nomination from an Australian business sponsor or any immediate prospects of securing one, would run contrary to the intentions of this visa program. Any decision to reinstate the subclass 457 visa would also have the effect of the applicant remaining in breach of condition 8107 and therefore liable to further cancellation action by the Department.

    The extent of compliance with visa conditions

20. At the time of the delegate’s decision, the applicant had ceased employment for over 10 months, and hence well in excess of the 90 day period specified in condition 8107. Further time has elapsed since the delegate’s decision and at the time of this decision the applicant remains in breach of condition 8107.

21. Beyond the clear breach of condition 8107, there is no evidence of the applicant’s non-compliance with any other conditions attached to visas she has held.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship); and the circumstances in which ground of cancellation arose

22. The applicant has maintained throughout the course of the cancellation consideration with both the Department and the Tribunal that her own and the secondary applicant’s employment circumstances with her former business sponsor were exploitative, with numerous employment conditions being breached and fundamentally that only one wage was being paid to both the applicant and her secondary dependent applicant, , being the nominated agreed salary of the applicant, when both parties were each performing full-time work.

23. The applicant’s claims in this regard have been recognised by relevant Australian authorities. In particular, during the course of the review the applicant has been pursuing remedies concerning her rights under Australian employment law in relation to her dismissal from her position with her former business sponsor. The applicant has provided a decision from the Fair Work Commission (FWC) dated 24 November 2015 which contains findings that the applicant’s termination from her employment on 3 July 2014 was harsh, unjust and unreasonable. The FWC determined that in the circumstances compensation order by instalment in the total sum of $27,500 plus superannuation was an appropriate remedy, and that in the circumstances remedy involving reinstatement was inappropriate.

24. The applicant also has a pending matter being investigated by the Fair Work Ombudsman and she wishes to remain in Australia to participate in this process as a witness.

25. The Tribunal acknowledges and accepts the evidence that the applicant had been exploited in her employment with her previous business sponsor and that she was unfairly dismissed from her position.

26. The Tribunal has allowed the applicant a considerable period of time in order to identify a new business sponsor. This has not so far eventuated. However, the time allowed the applicant has permitted her to seek and obtain a remedy from the FWC concerning remuneration. In this regard, whilst the applicant had been financially disadvantaged by her previous business sponsor’s actions, a relevant Australian body has heard and determined an appropriate compensatory arrangement concerning the applicant’s economic disadvantage.

27. The Tribunal also considers that any ongoing investigation being conducted by the Fair Work Ombudsman is a matter the applicant would be able to participate in and provide evidence even in circumstances were she not to be in Australia.

    Past and present conduct of the visa holder towards the department and any other relevant matters

28. Like the delegate, the Tribunal finds that the applicant has been cooperative in her dealings with Australian authorities in relation to his visa affairs.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

29. The effect of cancellation in the applicant’s case has no immediate mandatory consequences in relation to the applicant’s lawful status or liability for immigration detention.

30. The effect of cancellation does by all means impose upon the applicant certain re-entry barriers contained within Schedule 4 in view of the applicant departing Australia as the holder of a bridging E visa. However, the Tribunal does not consider that a factor of this nature on its own militates in favour of an exercise of the discretion not to cancel the applicant’s visa.

    Whether there would be consequential cancellations under s.140

31. The cancellation of the applicant’s visa has resulted in a consequential cancellation of the visa held by the secondary applicant. During the course of the review, the applicant advised the Tribunal the secondary applicant has since returned to the Philippines and she is also indicated that the relationship has now ended.

    Whether any international obligations would be breached as a result of the cancellation

32. There are no international obligations which would be breached as a result of the cancellation.

    Other matters

33. Extensive submissions have been made on the applicants’ behalf by an organisation called Migrante Australia, which is a non-profit community organisation organising and advocating on behalf of Filipino migrants including temporary migrant workers such as the applicant. The Tribunal has taken the matters put in submissions into account in the submissions and the Tribunal acknowledges the work undertaken by an organisation of this nature. However, for the reasons above having weighed all matters carefully in their totality, for the reasons outlined above the Tribunal has come to the ultimate conclusion that the discretion concerning cancellation cannot be exercised favourably in this case.

    CONCLUSIONS

34. Considering the circumstances as a whole, the Tribunal concludes that the subclass 457 visa held by the applicant should be cancelled.

    DECISION

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

36. The Tribunal has no jurisdiction with respect to the second named applicant.

    Don Lucas
    Member