1515809 (Migration)

[2016] AATA 4074

1515809 (Migration) [2016] AATA 4074 (4 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gjergj Preka
Mrs Suzana Preka

CASE NUMBER:  1515809

DIBP REFERENCE(S):  BCC2015/2395067

MEMBER:Kate Millar

DATE:4 July 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 04 July 2016 at 12:25pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Preka is a citizen of Albania. He first came to Australia as a tourist, then as a student, and then was granted a Subclass 457 (Business (Long Stay)) visa on 21 September 2012 to work as a Diesel Mechanic for Delmere Holdings Pty Ltd. Mr Preka ceased working for Delmere Holdings on 26 September 2014. As it is a condition of his visa that he does not cease work for more than 90 consecutive days, a delegate of the Minster for Immigration and Border Protection cancelled his visa on 11 November 2015 under s.116 of the Migration Act 1958 (the Act).  Mr and Mrs Preka have sought a review of that decision. 

2. The delegate cancelled the visa under s.116(1)(b) on the basis that Mr Preka had failed to comply with a Condition 8107 of his visa; namely that the period the visa holder ceases work must not exceed 90 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.

3. For the purposes of the tribunal’s jurisdiction under s.348 of the Act, the only decision that is before me is the decision to cancel Mr Preka’s visa. Mrs Preka’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.  As no decision was involved in the visa cancellation under s.140(1), I have no jurisdiction with respect to the second named applicant.

4. Mr Preka appeared before the tribunal on 17 June 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

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 satisfied a ground in that provision is made out. 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?

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 8107attached to the applicant’s visa. This condition requires at cl.8107(3)(b) that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 90 days.

8. Mr Preka does not dispute his employment with Delmere Holdings cease on 24 September 2014, and therefore that he has ceased employment for more than 90 days. As a result, he has breached Condition 8107 of his visa and a ground for cancellation under s.116(1)(b) exists.

9. As the ground in s.116(1)(b) does not require mandatory cancellation under s.116(3) I must consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

10. 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’.

11. Mr Preka says that he commenced at the Perth depot for Delmere Holdings on 24 September 2012.  He says in November 2013 he was asked to work in Port Hedland to cover other employees’ leave and was advised he would need to sign a new contract for the new site.  The position in Port Hedland was as a fly in fly out worker.  He says the new employment contract had a different remuneration package, and when he questioned his remuneration he was told the guaranteed earning under the 457 visa only applied for the first six months.  He says he was told that if he did not sign the contract he may not have a job any longer.  As a result he signed the contract. 

12. On starting work in Port Hedland Mr Preka says he was told his job in Perth was no longer available, and he continued to work in Port Hedland on a 28 days on 7 days off roster that paid less than his previous position.   He says he continued with the employment for fear of losing his job, however after visiting relatives discovered his original contract and salary were valid for the four years of the sponsorship.  When he questioned his employment terms on his return to Port Hedland he says he was told his employment had been terminated.

13. Mr Preka submits he has been taken advantage of by his employer who did not honour the employment obligations.  He provided payslips that show a difference in the amount he was paid when he was in Perth compared to when he was in Port Hedland. 

14. Had Mr Preka’s visa not been cancelled by the delegate, it would cease on 21 September 2016.  Mr Preka said is his application is successful he will apply for another visa before 21 September 2016. 

15. Mr Preka entered into a settlement with Delmere Holdings regarding a workers compensation claim and an unfair dismissal claim, and provided copies of the settlement agreements to the tribunal.  He also provided various medical reports relating to an injury to his hand. 

16. It is apparent from the medical reports Mr Preka provided that his account of the reason his employment was terminated differs from that he reported to his orthopaedic surgeon Dr Zandi.  In a letter to his general practitioner Dr Chee Meng Chang dated 17 November 2014 from Dr Zandi, Dr Zandi states his employment was terminated after he told his employer about the injury and wanted to seek workers compensation.  

17. This difference in account of the reasons his employment was terminated leads me to be cautious about accepting Mr Preka’s oral evidence where it is not supported by other evidence.

18. The settlement agreement for the workers compensation claim, which is not signed by the employer, states Mr Preka contends he suffered a left hand or wrist injury on or about 10 June 2014.  The claim was settled without any acknowledgement of liability.  Mr Preka says he was also injured in February 2015 but the employer did not want to acknowledge this injury due to the liability for compensation.

19. The settlement agreement for the unfair dismissal claim, also not signed by the employer, was also entered into without acknowledgement of liability.  Mr Preka says this settlement was entered into 22 January 2015.

20. Mr Preka said morally his visa should not be cancelled.  He said this is because to get the visa he stayed in Australia even when his mother and father-in-law died.  This is because of the terms of his bridging visa.  I do not accept a bridging visa prevented him leaving Australia to see his mother, but accept it would have prevented him re-entering Australia unless he had a particular type of bridging visa. 

21. Mr Preka made a number of submissions under each of the headings provided in the PAM, and I have considered each in turn.

    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

22. Mr Preka came to Australia to work as a diesel mechanic for Delmere Holdings.  He has not worked since 26 September 2014. 

23. When Mr Preka attended the hearing he provided a letter from another employer, who he says he met about two to three weeks before the hearing, and who said she has work for him.  He says this employer is a standard business sponsor.  The letter advising him of the hearing was issued on 16 May 2016, one month prior to the hearing, and therefore Mr Preka approached this employer after being advised of the hearing. 

24. On being asked why he had not previously found work, Mr Preka said he wanted to be honest with employers and so he told them about his injury.  Employers then told him to contact them after his hand had healed.  Mr Preka’s said at hearing he was no longer being treated for this injury from at least October 2015.  The last certificate stating he was unfit for work expired 16 May 2015.  I do not consider Mr Preka has made any significant attempt to obtain work prior to being advised of the date of the hearing.

25. Mr Preka submits he has a compelling need to remain in Australia as his son and his son’s family live in Australia, and his son is a permanent resident of Australia.  He says that the financial situation in Albania is dire, whereas there are significant employment opportunities for both Mr Preka and his wife in Australia. 

    The extent of compliance with visa conditions

26. Mr Preka has not worked from the date his employment with Delmere Holdings ended up to an including the date of the hearing.  This means he has been in breach for approximately 18 months. 

27. There is nothing before me to show he has not otherwise complied with the conditions of his visa. 

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

28. Mr Preka submits the cancellation of his visa would result in significant financial hardship as they would incur the costs of airfares to Albania or Italy.  He also said they will suffer emotionally and psychologically as the last year has been difficult due to the legal processes for the unfair dismissal and workers compensation claim.

29. I note the unsigned settlement agreement for the unfair dismissal claim is dated in January 2015, over 18 months ago.  The unsigned workers compensation settlement is not dated, however a letter from the lawyer acting for Mr Preka regarding disbursement of the settlement amount tis dated 17 July 2015, nearly a year ago.  I do not consider a period of a year is required to recover from taking this action. 

30. Mr Preka relies on his son and grandchild being in Australia. He said he came to Australia because he could not live apart from his son, and now it would be impossible to leave.   He   has a daughter in Albania.  He says his life is finished if the visa is cancelled because he spent everything to come to Australia and is now in debt.  He says in Italy he has no opportunities, and that to live in Italy he would have to apply for residence, find accommodation and start from nothing.  He said to find accommodation often landlords will seek six months’ rent in advance.

31. Mr Preka said it would be very hard to be 53 years old and having to start again, particularly with the economic situation in Italy, and he would feel like a failure as a person.  He said they have made good friends in Australia, and that they have limited friends in Italy. 

32. While I accept there will be financial hardship to Mr Preka is his visa is cancelled,  he can apply again for a visa from offshore if he can secure employment.  I accept he will suffer some psychological hardship if he is separated form his son and granddaughter, particularly as his mother and father-in-law are now deceased.

    The circumstances in which ground of cancellation arose

33. Mr Preka submits the ground for cancellation arose because his employer dismissed him after he questioned his rate of payment.  This does not explain his subsequent unemployment for 18 months after the 90 day period.

34. Mr Preka has suffered an injury to his hand.  I asked Mr Preka why he did not seek an appropriate visa, such as a medical treatment visa, if he was seeking treatment for an injury.  Mr Preka first said he saw four different lawyers and none told him to apply for a medical treatment visa. Later in the hearing he said he went to immigration approximately two months after he stopped working and was given information about a medical treatment visa and advised to apply on-line.  He says he did not apply for the visa because there was a request for a medical certificate and the payment of a fee, and because he needed a letter from a doctor with possible surgery dates.   

35. I do not consider the need to provide an application fee or medical reports in support of the visa application reasons supports Mr Preka’s submissions that his visa should not be cancelled.  I further find that he was advised of an appropriate type of visa and chose not to apply for this visa. 

    The past and present conduct of the visa holder towards the Department

36. Mr Preka says in his submission that he did not contact the Department after his employment ended because his employer said they would contact the department.  Whether or not this advice was given does not absolve Mr Preka of the responsibility to comply with the conditions of his visa or alternatively seek another type of visa appropriate to his situation. 

37. At hearing, Mr Preka said that after his employment was terminated, his employer asked him to delay contacting the Department until they had recalculated his superannuation.  While this may account for some delay in contacting the Department, he did then seek advice from the Department within two months of ceasing work however did not act on this advice. 

    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

38. The submissions state Mr and Mrs Preka will become unlawful non-citizens and liable to be detained if their visas are cancelled and will be prevented to from making an onshore application for another visa.

39. Mr and Mrs Preka will not be detained if they depart Australia.  While there are limited visa categories which may be applied for onshore, Mr and Mrs Preka are able to apply for another visa from offshore.  Their eligibility for any further visas may be considered in light of this visa being cancelled.

    Whether there would be consequential cancellations under s.140

40. If Mr Preka’s visa is cancelled, Mrs Preka’s visa will also be cancelled.  Mr Preka said Mrs Preka would find leaving Australia very hard because she would have to leave her granddaughter.

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

41. On being asked if there was any reason he could not return to Albania, Mr Preka said he has no connection with Albania as he left when he was 22 years old and it is difficult to go back.  He said everyone is leaving Albania because there is nothing there. 

    Any other relevant matters

42. Mr Preka said they have an elderly neighbour they treat like their mother and they help her.  I do not have any further information from the neighbour on what assistance they provide.

43. Having considered the circumstances as a whole I am not satisfied that the hardship Mr Preka would suffer if his visa were to be cancelled outweighs the length of time he has been in breach and his knowing failure to apply for an appropriate visa.  In the circumstances as a whole, I have concluded that the visa be cancelled.

    DECISION

44. The tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

45. The tribunal has no jurisdiction with respect to the second named applicant.

    Kate Millar
    Member