1512726 (Migration)

[2016] AATA 3100

1512726 (Migration) [2016] AATA 3100 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MANUEL JR BAUTISTA

CASE NUMBER:  1512726

DIBP REFERENCE(S):  BCC2015/1804254

MEMBER:Antonio Dronjic

DATE:21 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2016 at 12:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 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.

   Background to the cancellation of the applicant’s visa

3. The delegate’s decision record of 31 August 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 8 January 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 8 January 2017;

   ·The standard business sponsor who nominated the applicant to work as a Welder was Tali Engineering Pty Ltd;

   ·On 30 April 2015, the sponsoring business informed the Department that the applicant ceased his employment with this company as of 2 March 2015;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 21 July 2015;

   ·On 25 July 2015 the review applicant responded in writing to NOICC by stating that he does not agree with cancellation; that there is another business willing to sponsor him for the position; that he is the only ne supporting his family in the Philippines and that he wanted another chance;

   ·On 31 August 2015, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal on 16 September 2015 for review of the visa cancellation and was represented in relation to the review by his registered migration agent.

5. With his review application, the applicant submitted the following documents:

   ·A copy of the primary decision record;

   ·Letter from Advanced Fuel Tanks Pty Ltd dated 6 July 2015, as evidence that this company offered the applicant employment as a welder bookmaker; and

   ·Copy business nomination application made by Advanced Fuel Tanks Pty Ltd on 25 August 2015.

6. On 17 September 2015 the Tribunal acknowledged the receipt of the review application and with the same letter invited the applicant to provide material or written arguments for the Tribunal to consider.

7. On 13 November 2015, the Tribunal wrote to the applicant’s representative advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 21 January 2016. The applicant was advised that if he does not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal notes that the invitation to appear before the Tribunal was sent to the last address for service provided by the applicant in connection with the application for review.

8. The review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The Tribunal notes that under subsection 362B(1) it has a discretion, which is confirmed by subsection 362B(2), to re-schedule the review applicant’s appearance before it, or to delay its decision on the review in order to enable the review applicant’s appearance before it to be re-scheduled. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the review applicant’s favour but, given the findings set out below, the Tribunal determined that in the circumstances of this particular case there would be no value in doing so. 

10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal also considered whether, in the circumstances of this case, the evidence in support of the review application is likely to be forthcoming and whether the review applicant had a fair opportunity to provide the relevant information or documents already.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

11. The Tribunal has had regard to the fact that the visa application was cancelled by the Department on 31 August 2015. The review applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the review applicant has been aware for more than 4 months that his visa was cancelled under s.116 (1)(b) on the basis that he breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 consecutive days.

12. On 17 September 2015 the Tribunal acknowledged the receipt of the review application and with the same letter invited the applicant to provide material or written arguments for the Tribunal to consider. He was represented in relation to the review by a migration agent. Despite of the Tribunal invitation, neither the applicant nor his authorised representative provided further documentary evidence or submissions in support of the applicant’s case.

13. In addition, with its hearing invitation letter, the Tribunal invited the applicant to provide all documents the applicant intends to rely on at least 7 days before the hearing date. He had failed to do so. The applicant did not request the hearing postponement or contact the Tribunal to explain his non-appearance.

14. Accordingly the Tribunal decided not to postpone its decision-making any further to allow the review applicant additional time to provide documentary evidence or submissions in support of his application. In the circumstances of this case, the Tribunal is satisfied that the applicant had a fair opportunity to provide the relevant information or documents already and that it is unlikely he will do so if the tribunal postpone its decision making.

15. 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

16. 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?

17. 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 was attached to the applicant’s visa which was granted on 8 January 2013, and which, but for its cancellation, was valid to 8 January 2017. 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.

18. According to the primary decision record submitted by the applicant with his review application, the applicant ceased employment with Tali Engineering Pty Ltd on 2 March 2015. On 21 July 2015 the applicant was notified in writing that there may be grounds for cancelling his visa. He was issued with a Notice of Intention to Consider Cancellation (NOICC) which advised him that his visa may be cancelled under section 116(1)(b). He was advised to respond in writing.

19. On 25 July 2015, the review applicant responded to the NOICC by stating that he does not agree with cancellation; that there is another business willing to sponsor him for the position; that he is the only one supporting his family in the Philippines and that he wanted another chance.

20. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 21 January 2016. The review applicant has failed to appear before the Tribunal. Neither he nor his authorised representative provided submissions or further documentary evidence in support of the review application or contacted the Tribunal to explain the reason for the applicant’s nonappearance at the scheduled hearing.

21. There is no evidence before the Tribunal that the business sponsorship and business nomination applications lodged by any other business in respect of the review applicant were approved by the department. The Tribunal 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).

22. 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

23. 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’.

24. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[3] 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.[4]

    [3]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [4]     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]

25. 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 evidence it received from the applicant with the review application

26. 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 and stay in Australia;

    ·reason and extent of any breach of a visa condition;

    ·degree of hardship that may be caused;

    ·circumstances in which ground of cancellation arose;

    ·past and present conduct of the visa holder towards the department;

    ·whether there would be consequential cancellations under s.140;

    ·whether any international obligations would be breached as a result of the cancellation;

    ·the impact on any victims of family violence; and

    ·any other relevant matters raised by the visa holder.

27. As the applicant failed to appear at the hearing to provide evidence and present submissions to support the non-cancellation of his visa, the Tribunal has limited evidence before it.

28. There is little evidence before the Tribunal as to the particular degree of hardship that may be caused to the visa holder. The applicant claims that the visa cancellation would cause hardship to himself and his family as he is the only one supporting his family in the Philippines. While I accept that leaving Australia may involve some hardship to the applicant and his family, I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish himself in the Philippines, given his qualifications, employment background and employment experience.

29. The Tribunal is not aware of any particular extenuating or compassionate circumstances affecting the applicant and which outweigh the grounds for cancelling the visa. There is nothing before the Tribunal to indicate the applicant has been uncooperative or dishonest in his dealings with the Department. The Tribunal finds there are no persons in Australia whose visas would or may be cancelled under s.140. There is no evidence before the Tribunal of children whose interests could be affected by the cancellation or whether his removal would be in breach of Australia's non-refoulement obligations.

30. The Tribunal finds that the purpose of the review applicant’s stay in Australia was to work as welder for Tali Engineering Pty Ltd on a temporary basis. The ceased his employment with this business March 2015. The sponsoring company informed the department of cessation of the applicant’s employment on 30 April 2015. As of the day of my decision there is no evidence before me that the applicant is employed or that the business sponsorship and business nomination application applications lodged by any other business in respect of the review applicant were approved by the department.

31. The purpose of granting a subclass 457 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. 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 2 March 2015. I give significant weight to this consideration.

32. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 2 March 2015. 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’. However, on this date, the applicant had already ceased employment for more than 10 months. I find that the applicant’s failure to commence employment with a new business sponsor after 10 months since the original cessation of employment represents a significant breach of condition 8107.

33. 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

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

    Antonio Dronjic
    Member