1513447 (Migration)

[2015] AATA 3855

1513447 (Migration) [2015] AATA 3855 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Ferre

CASE NUMBER:  1513447

DIBP REFERENCE(S):  BCC2015/2141119

MEMBER:Fraser Syme

DATE:10 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 10 December 2015 at 5:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 September 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 applicant had not complied with 8107(3)(b) of the subclass 457 visa he previously held. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant included the delegate’s decision record with the review application.

3. The applicant appeared before the Tribunal on 3 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages, although the applicant often addressed the Tribunal in competent English.

4. The applicant was represented in relation to the review by his registered migration agent who attended the hearing in person and provided oral submissions.

5. 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

6. 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?

   s.116(1)(b) - non-compliance with conditions

7. 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. Condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. An extract of condition 8107 is attached to this decision.

8. The decision of the delegate sets out that:

   a.The first named applicant was granted a subclass 457 visa on 14 June 2012 (valid until 14 June 2016) under an approved nomination of his former sponsoring employer, EDT Networks (“EDT”) as a radio communications technician. The visa included condition 8107;

   b.On 26 November 2014, EDT informed the department the applicant ceased working with it on 9 November 2014.

   c.The delegate sent the applicant a notice of intention to consider cancellation (“NOICC”) of his subclass 457 visa on 7 September 2015;

   d.The first named applicant requested and was granted an extension of time to reply to the NOICC, which he did on 18 September 2014. He did not agree a ground for cancelation of his visa existed. Therein he claimed:

   i.EDT never provided written notice to him of termination of his employment. He only received written notice on 17 December 2014 that his visa was about to expire (he provided an automated message email from the accounts department at EDT). No grounds exist for his termination;

   ii.He does not know the date his sponsorship ceased, but he has not worked for any other employer and is willing to await further projects with EDT. He has maintained his health insurance.

   iii.cancellation of his visa would cause hardship to him and his wife. It is difficult to find work in the Philippines. He seeks an extension of his visa to find a suitable replacement sponsor.

   e.There are no department records EDT had re-employed the applicant or the applicant being subject to an approved nomination of another sponsor within 90 days of 9 November 2014.

9. The Tribunal notes the applicant gave the delegate two contracts of employment. The first is with ‘Slayneyside’ but states the applicant will be paid by EDT. The contract is unsigned but is dated 18 January 2012 and states it contract commences on the grant of the applicant’s subclass 457 visa. The second contract is with EDT. It too is unsigned. According to clause 3 and schedule one, the contract commences on 18 June 2012 for an unspecified period until terminated. Schedule one states either party may terminate the contract by giving 5 business days’ notice in writing. EDT has a power to terminate the contract in circumstances of ‘just cause’ which is detailed in clause 12.

10. At the commencement of the hearing, the applicant gave the Tribunal another contract between him and EDT. It was signed by the applicant in July 2014, states it was made in January 20011 (which the Tribunal takes to mean 2011) but also states it has a start date of April 2014. Again, clause 3 and Schedule one state that either party may terminate the contract on giving written notice, but the notice period is 3 weeks. There is a similar just cause clause too. During the hearing, the applicant provided the Tribunal with two more contracts between him and Slayneyside.

11. The applicant told the Tribunal he was originally employed by Slayneyside, but later in 2014, was employed by EDT. He believes there is some connection between the two companies, but is unsure what that connection is. Given the applicant was not employed by Slayneside at the time of cancellation of his visa, the Tribunal has not had any further regard to his employment contracts with Slayneside. The applicant explained the correct date he ceased work at EDT was not 9 November 2014, That was the date Mr M of EDT told him he need not return to work because the project was finished and there was no other work for him. However, EDT never gave any written notification to him about that. The Tribunal returns to this point in more detail in paragraphs 21-23. His attempts to find a new employer to sponsor him were unsuccessful and none of those potential employers ever made an application to nominate him.  The Tribunal returns to this point too in more detail in paragraph 24.He told the Tribunal he had remained unemployed since he ceased work with EDT.

12. To comply with condition 8107(3)(b), the first named applicant cannot be unemployed for more than 90 consecutive days. On the basis of the applicant’s evidence at the hearing, the Tribunal finds the applicant ceased work with EDT on 9 November 2014. The Tribunal accepts 17 October 2014 is the date the applicant may have stopped attending work for EDT, however it finds the day he ceased employment is the date notified by EDT, namely, 9 November 2014. The Tribunal reaches that conclusion the later date is the correct date when having account for any notice period (albeit the applicant disputes he received any written notification from EDT) about the cessation of his employment.  At the time of the cancelation of his visa on 28 September 2015, the applicant was unemployed for more than 90 consecutive days.  It follows that the Tribunal finds the applicant has not complied with condition 8107(3)(b).

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’, as follows:

    ·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 purpose of the subclass 457 visa is to permit applicant to work in a nominated position for an approved sponsor. The Tribunal considers that the applicant has not worked with an approved sponsor since October 2014 weighs in favour of cancelation of his visa.

16. As compelling needs to remain in Australia, the applicant stated he and his wife would both like to continue to work in Australia. The Tribunal accepts the applicant and his wife may have such a desire, but does not consider that to be a compelling reason not to cancel the applicant’s visa.

17. The migration agent submitted the applicant and his wife came to Australia on the promise of Slayneyside that they would be sponsored for permanent residence. However, EDT did not fulfil that promise. This was a great disappointment to the hopes of the applicant and his wife. The migration agent referred to an employee reward plan EDT gave to the applicant (which he provided to the Tribunal at the commencement of the hearing). The Tribunal noted that reward plan indicated the applicant would be ‘eligible’ for sponsorship of permanent residence after working with EDT for 12 months. It did not state EDT would sponsor the applicant. The Tribunal accepts the applicant is disappointed EDT did not sponsor him for permanent residence, but does not consider EDT not sponsoring the applicant for permanent residence to be a compelling reason not to cancel his visa.

    ·the extent of compliance with visa conditions

18. The Tribunal considers extent of the applicant’s breach is the applicant remained not employed under an approved nomination from 9 November 2014 to the cancelation of his 457 visa on 28 September 2015. While there are ameliorating reasons for the length applicant’s breach, including his claim he did not receive written notification from EDT of the termination of his employment and he has been unsuccessful in securing an alternate employer, the Tribunal considers those reasons are outweighed by the extent of the breach being far in excess of 90 consecutive days. There is no other information before the Tribunal which suggests the applicant has not complied with any of the other conditions of his former visa. Balancing all of that, the Tribunal considers the extent of the applicant’s non-compliance with visa conditions weighs in favour of cancelling the applicant’s visa.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. The applicant raised as hardship that he and his wife would not be able to work in Australia and that he did not have a job in the Philippines. He has relatives in Australia and he has relatives whom he is responsible to support financially. The Tribunal accepts the cancelation of the applicant’s visa will have the outcome that he and his wife will not be able to work in Australia. It accepts too that the applicant will face some challenges in securing new employment in the Philippines and that it is likely his earning power in Australia would be considerably higher than in the Philippines. The Tribunal accepts too the applicant would be able to better support his relatives if he was working in Australia. The Tribunal does not consider those factors amount to a degree of hardship that would weigh in favour of not cancelling the applicant’s visa. The Tribunal accepts the applicant has relatives in Australia but does not accept this would cause a degree of hardship that weighs in favour or not cancelling his visa.

20. Referring to the employee reward plan, the migration agent submitted too that EDT not sponsoring the applicant for permanent residence was a ground of hardship. While the Tribunal accepts it is a source of disappointment to the applicant, for the reasons discussed above regarding the employee reward not promising EDT would sponsor the applicant, the Tribunal does not consider the failure of EDT to sponsor the applicant for permanent residence is

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. Much of the discussion at the hearing and evidence related to this consideration. The applicant claims EDT treated him unfairly by not giving him written notice of its termination of his employment and because he was not given any reasons for termination. He told the Tribunal he had not made any complaint to Fair Work Commission about the circumstances he ceased working with EDT. He was aware he could make a complaint, but did not know how to and decided not to go ahead because he was unsure what the outcome would be. The Tribunal noted it was not the correct forum to adjudicate whether he had a valid complaint against EDT.

22. The Tribunal discussed with the applicant it was unsure which of the contracts he provided were actually in effect, as it did not have any contracts signed by both parties. It would appear though that the contract he gave to the delegate from July 2014 may supersede the contract he gave to the Tribunal from April 2014. In any event, both contracts gave the parties the right to terminate the contract without fault on the provision of written notice. The applicant commented he had not read the contracts properly and was unaware of those provisions. The Tribunal has had regard to the automated email he received from EDT regarding the pending expiry of his visa. Given it was an automated email, the Tribunal considers it offers little insight into the applicant’s claims regarding his treatment by EDT. The Tribunal considers whether or not EDT correctly or incorrectly provided written notice to the applicant of the cessation of his employment does not change that the applicant did cease employment with EDT.

23. The applicant has not made any complaint regarding the claims he makes about how his employment was terminated. And, he concedes he did not read the contract terms empowering EDT to terminate the employment contract by the giving of written notice (albeit he disputes he received any written notice). The evidence before the Tribunal is that EDT ceased to employ the applicant as the project on which he was working had ceased and EDT had no other work for him. The applicant then initially elected to wait for new work with EDT, but later sought nomination by a new employer. To the extent the circumstances in which the ground for cancellation arose are related to EDT ceasing to employ the applicant, the Tribunal considers this was a reason beyond the applicant’s control.

24. He told the Tribunal one potential employer was willing to sponsor him, but a migration agent told him that business did not stand good prospects of being approved as a sponsor. For that reason, it did not proceed with any application to the department. A second potential employer’s initial willingness to sponsor him was reversed upon that potential employer learning the applicant’s visa had been cancelled and was under review by the Tribunal. Other than those too occasions, the applicant had made various enquiries with potential employers through a job vacancy website. Having regard to that evidence, to the extent the circumstances in which the ground for cancellation arose are related to the applicant being unable to secure an new employer to nominate him, the Tribunal does not consider they were for reasons beyond the applicant’s control.

25. The Tribunal is mindful the department’s guidelines state “…as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.” When having regard to the totality of the reasons in which the ground for cancellation arose, the Tribunal considers that although the decision of EDT to cease to employ the applicant was beyond his control, his subsequent actions after that were within the applicant’s control. It was his decision to await EDT to provide him with future work (which did not eventuate). It was his decision which other potential employers he unsuccessfully sought to nominate him. The Tribunal considers on balance, the circumstances in which the ground for cancelation arose weigh in favour of cancelling the applicant’s visa.

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

26. The applicant told the Tribunal, conscious of the requirements of condition 8107 he not be unemployed for more than 90 consecutive days, in March 2015 he went to the Brisbane office of the department. He inquired whether he was able to obtain an extension of time until the expiry date of his visa in June 2016 within which to find a new employer to sponsor him. The department officer he spoke to did not know the answer and gave the applicant the contact details of the subclass 457 visa section. The applicant did not contact that section. He thought he would be able to remain until his visa expired. That explanation seems to contradict the applicant being aware of the requirements of condition 8107 which motivated his contacting the department in the first place. However, the Tribunal is willing to give the applicant the benefit of the doubt and accept the applicant was genuinely uncertain and mistaken about the interplay between the expiry date of his visa and condition 8107. There is no other information before the Tribunal that otherwise indicates any past or present conduct of the applicant which would weigh in favour of cancelling the applicant’s visa.

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

27. The applicant’s breach is not related to r.2.43(1)(la).

    ·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

28. The applicant conceded if his visa is cancelled, he would volunteer to return to the Philippines. The Tribunal finds this consideration weighs in favour of cancelling his visa.

    ·whether there would be consequential cancellations under s.140

29. The applicant’s wife, who is in Australia, will have her visa consequentially cancelled under s.140. The Tribunal considers the consequential cancelation weighs in favour of not cancelling the applicant’s visa.

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

30. The applicant stated there are no issues regarding an international obligation that would be breached if his visa was cancelled. The Tribunal considers this weighs in favour of cancelling his visa.

    ·any other relevant matters.

31. The applicant did not raise any other relevant matters.

32. Balancing all of these factors, the Tribunal places significant weight on the applicant not having worked for an approved sponsor under an approved nomination since October 2014 and he has no imminent prospects of doing so. The Tribunal is willing to accept there was some irregularity in the way EDT notified the applicant of its ceasing to employ him, but notes under the unsigned contracts provided, EDT had a right to cease employing the applicant without there being any wrongdoing or misconduct on the applicant’s part. The Tribunal accepts this causes disappointment to the applicant and accepts the applicant and his wife would experience some hardship were they to return to Philippines. The Tribunal considers the disappointment and hardship to the applicant and his wife is outweighed by the extent and duration of his breach of condition 8107 and that on balance, the totality of the circumstances in which the breach arose were not for reasons beyond his control. Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes the preferable decision in this case is that the applicant’s visa should be cancelled.

    DECISION

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

   Fraser Syme
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.