1513880 (Migration)

[2016] AATA 3258

1513880 (Migration) [2016] AATA 3258 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bob Steven (also known as Bob Steven Wijaya)

CASE NUMBER:  1513880

DIBP REFERENCE(S):  BCC2015/647141

MEMBER:Dione Dimitriadis

DATE:17 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 February 2016 at 10:06am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 October 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 had not complied with condition 8107. The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 12 February 2016 to give evidence and present arguments.  

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. The applicant was granted a Subclass 457 visa on 18 October 2012.

7. Information in the delegate’s decision record is that the applicant ceased employment with the sponsoring employer (the sponsor), And Then Pty Ltd, on 17 April 2014. The sponsor advised the Department of Immigration (the Department) on 2 May 2014 that the applicant ceased employment with the sponsor on 17 April 2014.  The delegate referred to the applicant as Bob Steven Wijaya.

8. Information in the delegate’s decision record is that the applicant was granted a visa to work in a skilled occupation for the sponsor, but he ceased working for the sponsor on 17 April 2014.

9. On 27 March 2015 the Department issued a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 to the applicant. The NOICC stated that the Department received written notification from And Then Pty Ltd (the sponsor) that the applicant ceased employment with the sponsor on 17 April 2014. The NOICC informed the applicant that this indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 which was attached to his visa, because it appears that he has ceased employment with the sponsor for a period exceeding 90 consecutive days. The NOICC invited the applicant to comment on the ground(s) for cancellation identified in the letter and to give reasons why his visa should not be cancelled.

10. On 27 March 2015 the Department received a response from the applicant who indicated that he has no argument about the ground of the visa cancellation. The applicant stated that last year, his sponsor, And Then Pty Ltd trading as Coffee Warehouse, decided to close the trading business in March 2014 with the intention of moving to a new establishment in the city. However, the place of business has still not been finished. The applicant stated that a couple of weeks before the place closed, he called the Department and was told that as long as the company still exists, he can maintain his visa while he waits for the new establishment to be ready. The applicant was told by the manager that the new establishment will be ready in two to four months.  The applicant stated that he told the company that he will seek new employment and sponsorship. In late 2014, he found a restaurant willing to sponsor him. However, he fractured his ankle and fibula in early December and required surgery before the application could be make. The restaurant is willing to sponsor him but he does not have permission from his doctor to resume any heavy tasks.  That is the reason for the delay in transferring his employment. The applicant requested leniency.

11. On 15 April 2015 the Department wrote to the applicant and informed him that it had granted him a period of 14 days for his potential employer to make a nomination application.

12. The applicant wrote to the Department on 17 April 2015 and requested an extension of time as the employer is waiting for the company financial statement from the accountant.

13. On 17 April 2015 the Department wrote to the applicant and informed him that no further extension will be granted.

14. On 22 April 2014 the Department received an email from the applicant who provided a Nomination TRN number.

15. On 26 May 2015 the Department received an email from the applicant who stated that the nomination TRN number has changed and he provided the new number.  The applicant stated that in about the middle of May 2015 the employer received an email stating that the application had been approved.

16. On 26 May 2015 the Department wrote to the applicant and informed him that his employer’s application to become a standard business sponsor had been approved but the nomination application had not been finalised.

17. On 2 October 2015 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

18. At the time of lodging the application for review on 13 October 2015, the applicant provided a copy of the delegate’s decision record.

    The Tribunal hearing

19. At the hearing the Tribunal informed the applicant that the delegate decided to cancel the visa because the delegate was satisfied that he had not complied with a condition of his visa and the reasons for cancelling the visa outweighed the reasons not to cancel the visa. The Tribunal informed the applicant that the visa was cancelled under s.116(1)(b) of the Act and the delegate found that he had not complied with condition 8107. The Tribunal informed the applicant that if the visa that he holds, or the last substantive visa that he held, was a Subclass 457 visa, if he ceases employment, the period during which he ceases employment must not exceed 90 consecutive days.

20. The Tribunal informed the applicant that it would look at whether he did not comply with a condition of his visa, and if so, whether his visa should be cancelled.

21. The applicant stated that his name is Bob Steven and he showed his current Indonesian passport in that name. The applicant stated that his birth certificate shows his name as Bob Steven not Bob Steven Wijaya. He had a previous passport with the name Bob Steven Wijaya.

22. The applicant stated that he first came to Australia in about 2004 to study. He did an English course and then a Foundation course so that he could study Engineering at Sydney University. He did not like that course and changed to the University of New South Wales. He undertook these courses on his father’s request but he did not like them. He then changed to William Business College to study marketing and management. The applicant worked part-time at a restaurant. One of his colleagues was opening a restaurant and offered to sponsor the applicant.

23. The applicant stated that he started working part-time for And Then Pty Ltd (the sponsor) trading as Coffee Warehouse from about February 2012 and then worked full-time from the date his Subclass 457 visa was granted on 18 October 2012. He worked there until April 2014.  The sponsor applied for approval of a nomination and it was approved for the occupation of Cook.  

24. The Tribunal informed the applicant that the information in the delegate’s decision record is that he ceased his employment with the sponsor on 17 April 2014. The applicant stated that, until he got the NOICC, he thought he was on leave without pay. 

25. The applicant confirmed that he had not worked for an approved standard business sponsor for more than 90 days.  The applicant confirmed that he was granted an extension of time by the Department to find another sponsor. However, the nomination by Ideal Solution Consulting Pty Ltd of the occupation of Chef was not approved by the Department

26. The applicant confirmed that he has not worked for another standard business sponsor for almost two years.

27. The Tribunal informed the applicant that it appears that he has breached condition 8107 because he held a Subclass 457 visa and the period during which he ceased employment exceeded 90 consecutive days. The Tribunal informed the applicant that it appears that a ground for cancellation exists.

28. The Tribunal informed the applicant that it would take into consideration any matters raised by him as to why the visa should not be cancelled.

29. The applicant stated that he fractured his ankle about a year ago. He had surgery at Prince of Wales Hospital and was on crutches for a few months. He knows that there is no current approved nomination by a standard business sponsor.  The applicant stated that he was given leniency by the Department to try and find another sponsor. There was miscommunication between himself and the sponsor because the restaurant was closing down and they were going to open in the city. The applicant spoke to the Department and told them he was on leave without pay and he was told that he was eligible to stay on a Subclass 457 visa. However, the sponsor then informed the Department that he was no longer working there. The sponsor did not tell the applicant that he was going to inform the Department that the applicant had left their employment. They did not open another restaurant until December 2015.

30. The applicant has been in Australia for about ten years. He did not finish any courses. He does not have work rights and is being supported by his family. He lives with his two brothers who are younger than him and are both studying. He has two brothers and two cousins here. His parents, one brother and a sister live in Indonesia. He has another sister who lives in Taiwan. The applicant does not have a partner or children.

31. Regarding the degree of hardship that may be caused to the applicant and any family members, the applicant stated that he likes Australia and has been here for a long time. The decisions made about the courses he undertook came from his father. It was while doing those courses that he found that he wanted to work in hospitality and cooking. He wants to apply for a new employer. The applicant stated that if his visa remains cancelled, it is very hard to come back.

32. The applicant stated that he has nothing to say about the circumstances in which the ground for cancellation arose. The applicant stated that the circumstances as described are correct.

33. The applicant stated that he has always been truthful in his statements and dealings with the Department. He has complied with all visa conditions other than condition 8107. The applicant confirmed that he had breached condition 8107.

34. The applicant stated that if his visa is reinstated, he can apply for another visa.

35. The Tribunal informed the applicant that there is no current approved nomination by a standard business sponsor of an occupation in relation to him and this is a requirement of a Subclass 457 visa.

36. The Tribunal has had regard to the oral evidence at the hearing and the documentary evidence on the Tribunal file and the Department’s file.

37. 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

38. 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.

39. In this case, condition 8107 was attached to the applicant’s visa which was granted on 18 October 2012. Amendments to Condition 8107 were made on 1 July 2013 that applied to all visas in effect on that date (Migration Legislation Amendment Regulation 2013 (No.3)). In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 requires that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(a)(ii)(B). The holder must commence that work within 90 days after the holder’s arrival in Australia: condition 8107(3)(aa). Departmental policy states that where the holder is already in Australia, they must commence employment within 90 days of the grant of the visa. If the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: condition 8107(3)(b).

40. The applicant stated at the hearing that he worked for the sponsor until April 2014. The delegate’s decision record indicates that the sponsor informed the Department on 2 May 2014 that the applicant stopped working for the sponsor on 17 April 2014.   

41. The Tribunal accepts that the applicant commenced working part-time for the sponsor from February 2012. The Tribunal also accepts that the applicant worked full-time as a Cook for the sponsor from the time of the grant of the Subclass 457 visa on 18 October 2012. Condition 8107(3)(a)(i) requires that an applicant must work only in the occupation listed in the most recently approved nomination for the holder. That occupation was a Cook.  

42. The Tribunal is satisfied that the applicant ceased employment with the sponsor on 17 April 2014. The applicant has attempted to find, but has not been successful in finding, a standard business sponsor which has an approved nomination of an occupation in relation to the applicant. The Tribunal is satisfied that the applicant, whose last substantive visa was a Subclass 457 visa that was granted on the basis that he met the requirements of subclause 457.223(4), ceased employment on 17 April 2014 and the period during which the applicant ceased employment exceeded 90 consecutive days.

43. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa.

44. 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

45. 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

46. The applicant came to Australia in 2004 to study and in 2012 he was sponsored by the sponsor for a Subclass 457 visa. After studying here for several years, the applicant realised that he wished to work in hospitality or cooking.

47. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to study in Australia and then to work in Australia. The purpose of the applicant’s stay in Australia at the time he applied for a Subclass 457 visa was to work as a Cook for the sponsor.  The Tribunal finds that the purpose of working as a Cook for the sponsor no longer exists as the applicant ceased working for the sponsor on 17 April 2014. Although the sponsor started a new restaurant in December 2015, the applicant is not working for the sponsor. The applicant has not found a new approved sponsor that has applied for approval of a nomination and that nomination has been approved.

48. The applicant gave evidence that he found another employer to sponsor him but although the employer was approved as a standard business sponsor, the nomination was not approved by the Department. 

49. The applicant was consistent in his evidence about his employment.  The applicant was granted a Subclass 457 visa which is a temporary visa.  However, the situation now is that the applicant does not have a standard business sponsor that has applied for approval of a nomination in relation to the applicant and that nomination has been approved. 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 in relation to the applicant.

    The extent of compliance with visa conditions

50. The Tribunal is satisfied on the evidence that the applicant has complied with visa conditions other than condition 8107.

    The impact on any victims of family violence

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

    Whether there would be consequential cancellations under s.140

52. There is no evidence that there would be consequential cancellations under s.140 of the Act. 

    Degree of hardship that may be caused  

53. The Tribunal accepts that the visa cancellation would cause some hardship to the applicant who has lived in Australia since late 2004. There is evidence that the applicant has ties to the Australian community and he has two of his brothers and two cousins in Australia. The applicant is 29 years old and has skills as a Cook. The Tribunal is satisfied that he would be able to re-establish himself in Indonesia, his home country. Whilst the cancellation means that the applicant would have to return to Indonesia, the applicant held a temporary visa. The Tribunal finds that he would not have had a real expectation that he would be able to remain in Australia on a permanent basis. There is no evidence before the Tribunal that the applicant will not be able to work and support himself in Indonesia where he speaks the language, he has skills and he has family there, including his parents and two siblings. 

    Circumstances in which ground of cancellation arose.  

54. The ground for cancellation arose when the applicant ceased employment with the sponsor for over 90 consecutive days: condition 8107(3)(b). The Tribunal accepts that the applicant worked for his former sponsor from February 2012 until 17 April 2014. The applicant was granted the Subclass 457 visa on 18 October 2012 and worked full-time for the sponsor until 17 April 2014. The applicant’s evidence is that the sponsor closed down the business.

55. The Tribunal accepts that the applicant was unable to work for the sponsor because the business closed down. 

56. The applicant has had an opportunity to mitigate the breach by finding employment with another sponsor. In this case, the Tribunal finds that the applicant has taken steps to commence employment with another sponsoring employer.  The applicant informed the Tribunal that he had an employer who was willing to sponsor him. However, whilst the proposed employer was approved as a standard business sponsor, the applicant confirmed that the nomination was not approved. The evidence before the Tribunal is that there is no approved nomination in relation to the applicant by a standard business sponsor.   

57. At the time of the Tribunal’s decision, it has been approximately one year and ten months since the applicant was employed by the sponsor. The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer. Even though the applicant was unable to continuing working for the sponsor because the business had closed down, the Tribunal nevertheless finds that the applicant’s failure to commence employment with a new business sponsor one year and ten months after the non-compliance represents a significant breach of condition 8107.

    Past and present conduct of the visa holder towards the department

1. The Tribunal accepts that the applicant has not previously breached visa conditions. The Tribunal accepts that the applicant has been honest in his dealings with the Department.

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

2. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

   Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

3. The applicant’s visa was cancelled on 2 October 2015 and he has held a Bridging E visa from 8 October 2015. The applicant does not have work rights on his Bridging E visa. The Tribunal does not have evidence before it that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

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

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

   Any other relevant matters

5. The applicant had concerns that there would be an exclusion period because he has had a visa cancelled. The Tribunal has considered this evidence but is not satisfied in this case that this is a reason not to cancel the visa for a breach of condition 8107. 

   CONCLUSIONS

6. The Tribunal has considered and weighed all of the relevant circumstances of the applicant’s case. The Tribunal has considered the evidence that the applicant worked for the sponsor until the sponsor closed the restaurant and then he was on leave without pay and was looking for another sponsor. He stopped working for the sponsor on 17 April 2014. The purpose of the applicant’s stay in Australia no longer exists. The applicant has not worked for a business sponsor in a nominated skilled position for approximately one year and ten months and he has been unable to secure a new sponsorship with an approved nomination in relation to the applicant. Even if the applicant’s Subclass 457 visa were not cancelled, the applicant would be unable to continue to meet the requirements of a Subclass 457 visa, given that he does not have a sponsor and an approved business nomination in relation to the applicant. It is a requirement of cl.457.223(4)(a) that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased.

7. The Tribunal acknowledges that the applicant has taken steps to commence employment with another sponsoring employer. However, he has not been successful in obtaining a new approved nomination. The Tribunal accepts that cancellation of the visa would cause the applicant some hardship, but the Tribunal is not satisfied that the hardship will be serious. He will return to Indonesia with skills as a Cook and where he has two siblings and both his parents. 

8. 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.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Dione Dimitriadis

    
    

    Member

    ATTACHMENT

    8107

    (1)      If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)      cease to be employed by the employer in relation to which the visa was granted; or

    (b)      work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)      If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)      cease to undertake the activity in relation to which the visa was granted; or

    (b)      engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
         (i)      hold the licence, registration or membership; and
         (ii)      comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) For subparagraph (3)(a)(ii), the circumstances are that:

    (a)      if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    (3B)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)      the holder must work only in the occupation or position in relation to which the visa was granted; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

    (4)      If the visa is:

    (a)      a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

    (b)      a Subclass 402 (Training and Research) visa; or

    (ba)      a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)      cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (d)      engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (e)      engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.