1515859 (Migration)

[2016] AATA 3734

1515859 (Migration) [2016] AATA 3734 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charalampos Petrakis

CASE NUMBER:  1515859

DIBP REFERENCE(S):  BCC2015/2369287

MEMBER:Don Lucas

DATE:1 April 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 01 April 2016 at 6:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 November 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 on the basis that the applicant had breached condition 8107. 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 applicant participated in a hearing by teleconference in the Tribunal on 11 February 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his solicitor/registered migration agent. The representative attended the Tribunal hearing also via teleconference.

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?

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. This condition applies to a subclass 457 visa holder who has been identified in an approved nomination permitting employment in a nominated position. It states at subparagraph 8107(3)(b) that if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days.

8. In written submissions to the Department, the applicant through his representative responded to a notice of intention to consider cancellation of his visa with the assertion that he had not to his own knowledge ceased employment with the sponsor and had never been advised of any termination. He further stated that he had been working for the sponsor entirely without pay since June 2014, notwithstanding an agreed nominated base salary of $105,336. The applicant stated that he had continued performing his role as a journalist for the sponsor notwithstanding he was not being paid in the hope and expectation that he would ultimately be back-paid what was his due. The applicant advised the Tribunal that by October 2014, it became evident to him that he would never be properly remunerated and he ceased performing his own duties at the end of October 2014.

9. In his evidence to the Tribunal, the applicant concedes that his former business sponsor, Zougla GR SA.A. E-Mass Media terminated his employment from 31 October 2014, advising the Department of this in December 2014. Although the Tribunal is prepared to accept that the applicant’s former sponsor did not advise him of the termination and he only became aware of this subsequently, the applicant’s own evidence is that as a matter of fact he ceased performing any duties as a journalist for the sponsor after October 2014, after some five months of performing his duties without remuneration.

10. Accordingly, the Tribunal must find that the applicant ceased employment with his business sponsor for more than 90 days, both at the time of the Department’s decision and certainly by the time of the Tribunal’s decision and the applicant is accordingly in breach of condition 8107(3)(b).

11. 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

12. 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’.

13. The Tribunal makes the following findings:

    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

14. The applicant entered Australia on 7 March 2014 as the holder of a subclass 457 visa under the sponsorship of an overseas standard business sponsor, Zougla GR SA.A. E-Mass Media, in order to perform work in the approved nominated occupation of journalist/correspondence. The evidence before the Tribunal is that the applicant excelled in his role as a journalist using the Greek language of communication, and is a highly regarded journalist in his home country and elsewhere.

15. However, as noted above, the applicant’s employment with his last standard business sponsor ceased in October 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.

16. In this regard, the Tribunal notes that permitted the applicant a period of time following the hearing to identify another business sponsor that may be in a position to nominate him, and the applicant has not been able to do so. The applicant has now indicated to the Tribunal that he has taken up another journalistic role in Greece and has no intentions in the short or medium term to return to Australia.

17. The Tribunal places significant weight on the purposes of the subclass 457 visa program, which is intended to allow 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 for a four year period ending on 6 February 2018. The Tribunal considers that any decision having the effect of reinstating the applicant’s subclass 457 visa in circumstances where he 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

18. At the time of the delegate’s decision, the applicant had ceased employment for over two years, and hence well in excess of the 90 day period specified in condition 8107.

19. Beyond the clear breach of condition 8107, there is no evidence of the applicant’s non-compliance with any other conditions attached to visas he has held. Any other breaches arising from the facts of this case appear instead to be breaches of sponsorship obligations on the part of the applicant’s former standard business sponsor. The Tribunal is not aware of any pending action being taken by the Department in this regard, but notes this matter nonetheless.

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

20. The Tribunal acknowledges and accepts the evidence that the applicant had not been lawfully remunerated by his former business sponsor, and this was ultimately the cause of the applicant ceasing to perform what had for him become many months of unpaid work on the sponsor’s behalf. The applicant has by all means experienced hardship as a result of this, but considers that the hardship has not been the consequence of visa cancellation but rather the consequence of most regrettable employment experience.

    Circumstances in which ground of cancellation arose

21. The Tribunal accepts that the applicant’s employment with his previous business sponsor ceased due to circumstances in which the applicant had not for many months been properly remunerated - or indeed remunerated at all - at a time when he continued to perform the tasks and duties required in his nominated occupation. Although the applicant elected to cease performing what had become underpaid duties by October 2014, the applicant can scarcely be blamed for doing so in the circumstances.

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

22. Like the delegate, the Tribunal finds that the applicant has been cooperative in his 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

23. 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. This is particularly so at present, given the applicant departed Australia shortly before the scheduled hearing in order to attend an important event overseas and has no bridging visa permitting re-entry.

24. 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. Although the representative’s requested the Tribunal to make recommendations concerning the lifting of an exclusion period on any future application made within three years of the applicant’s departure from Australia, this is simply not a matter the Tribunal has any role in recommending or determining. Such considerations would need to be assessed on their merits in the first instance by a delegate considering such an application were it to be made.

    Whether there would be consequential cancellations under s.140

25. No consequential cancellations arise in this matter.

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

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

    CONCLUSIONS

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

    DECISION

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

    Don Lucas
    Member