1601109 (Migration)

[2016] AATA 4217

1601109 (Migration) [2016] AATA 4217 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PARESHKUMAR POPATBHAI PATEL
Mrs Shraddhaben Patel

CASE NUMBER:  1601109

DIBP REFERENCE(S):  BCC2015/3904060

MEMBER:Antonio Dronjic

DATE:22 July 2016

PLACE OF DECISION:  Melbourne

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

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

Statement made on 22 July 2016 at 5:11pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 January 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’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 which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

   Background to the cancellation of the applicant’s visa

4. The decision record of 27 February 2016 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 12 December 2014, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 12 December 2018;

   ·The standard business sponsor who most recently successfully nominated the applicant to work as a Contract Administrator was AFS Property Services Pty Ltd;

   ·On 30 June 2015, CMC Franchising Pty Ltd ATF CMC Unit Trust acquired AFS Property Services Pty Ltd and subsequently agreed to nominate all existing subclass 457 visa holders from AFS Property Services Pty Ltd to work for the new company;

   ·On 30 June 2015, the applicant ceased his employment at AFS Property Services Pty Ltd;

   ·The department was notified of cession of employment on 9 December 2015;

   ·On 9 September 2015, the department received a nomination application from CMC Unit Trust, nominating the applicant for the position of a Contract Administrator. This application was refused by the Department on 28 October 2015;

   ·On 30 October 2015, the department received another nomination application from CMC Unit Trust, nominating the applicant for the position of a Contract Administrator. This application was refused by the Department on 4 December 2015;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 15 January 2016;

   ·On 18 January 2016, the department received another nomination application from CMC Unit Trust, nominating the applicant for the position of a Facilities Manager;

   ·On 20 January 2016 the applicant responded in writing to NOICC by stating that the applicant worked for AFS Property Services Pty Ltd from December 2014 to June 2015; that he ceased employment at AFS Property Services Pty Ltd on 30 June 2015; that the new company, CMC Unit Trust, lodged nomination application in September 2015 which is within the timeframe of 90 days; that this nomination application was refused and the new prospective employer lodged another nomination application in October 2015; that this application was also refused; that the applicant has now been working for CMC Unit Trust since July 2015 and that he has complied with all the visa conditions; that the applicant was promoted to a position of a Facilities Manager and that the CMC Unit Trust lodged another nomination application with the department in January 2016, nominating the applicant for the position of a Facilities Manager;

   ·On 15 February 2016, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the tribunal on 2 February 2016 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 17 May 2016, the tribunal wrote to the applicant 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 14 July 2016.

7. On 27 May 2016, the applicant’s representative wrote to the tribunal attaching the response to the hearing invitation form, indicating that both the applicant and the representative will attend the scheduled hearing and requesting a Gujarati’s interpreter.

8. On 7 July 2016, the applicant’s representative wrote to the tribunal seeking the hearing adjournment on the basis that the prospective employer lodged a new business nomination application in January 2016 and the decision is still pending with the department. On the same day, the tribunal officer wrote to the applicant’s representative advising that the presiding member considered the request for the hearing postponement and decided to not to adjourn the hearing. The applicant was advised that the hearing will proceed as scheduled.

9. On 8 July 2016, the applicant’s representative wrote to the tribunal requesting to appear at the scheduled hearing visa teleconference and advising that the applicant will appear in person.

10. On 12 July at 5.34pm, the applicant’s representative wrote to the tribunal attaching submissions and requesting the tribunal to make decision on submissions and waive the hearing ‘if this is possible’. As the request ‘to waive the hearing’ was not brought to member’s attention in time, the hearing was cancelled and the new one scheduled for 5 August 2016.

11. On 14 July 2016, the tribunal wrote to the applicant advising that the member is not able to make decision in favour of the applicant based on the submissions and documentary evidence received. The tribunal sought clarification for the applicant whether he consents to the Tribunal deciding the review without the applicant appearing before it pursuant to s.360(2)(b), and if so, to confirm that in writing.

12. On 18 July 2016, the applicant’s representative wrote to the tribunal confirming that the applicant consents to the Tribunal deciding the review without the applicant appearing before it.

13. 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

14. 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?

15. 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 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.

16. Based on the evidence before it, the tribunal is satisfied that the condition 8107 was attached to the applicant's visa, which was granted on 12 December 2014, and which, but for its cancellation, was to remain valid to 12 December 2018.

17. Based on the evidence before it, the tribunal finds that the applicant ceased employment with AFS Property Services Pty Ltd on 30 June 2015. This fact was conceded in the submissions of 12 July 2015, provided to the tribunal by the applicant’s representative. The tribunal further 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).

18. The evidence before me indicated that on 30 June 2015, a new legal entity, CMC Franchising Pty Ltd ATF CMC Unit Trust acquired AFS Property services Pty Ltd. On 15 September 2015, the applicant’s new prospective employer, CMC Unit Trust, lodged business nomination application with the department nominating the visa holder for the position of a Contract Administrator within the business.

19. In his submissions of 12 July 2015, the applicant’s representative disputes that the applicant failed to comply with 8107 condition because the new prospective employer lodged business nomination related to the applicant within 90 days of the applicant’s cessation of employment at AFS Property Services Pty Ltd.

20. Condition 8107(3)(b) state that ‘if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days’. Lodgement of a new business nomination does not mean that the applicant is employed and will not of itself stop the running of the prescribed period of 90 days. Had the applicant commenced the employment within 90 days from 30 June 2015, there would be no breach of the condition 8107.   

21. 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

22. 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’.

23. The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

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

    [2]     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]

24. 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 submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

25. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

26. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Contract Administrator on a temporary basis. I accept that he has been rendered unemployed on 30 June 2015 through no fault of his own. I also accept that the applicant attempted to find another employer. I took into consideration evidence that on 15 September 2015, the applicant’s new prospective employer, CMC Unit Trust, lodged business nomination application nominating the applicant for the same position in the business. This nomination was refused by the department on 28 October 2015.

27. On 30 October 2015, CMC Unit Trust lodged another nomination, nominating the applicant for the same position of a Contract Administrator. This application was refused by the department on 4 December 2015. It was not until 15 January 2016 that the department commenced cancelation process by issuing NOICC. Despite the fact that the applicant ceased employment with his original sponsor on 30 June 2015, the department did not cancel the applicant’s visa until 27 January 2016.

28. On 18 January 2016, the applicant’s new prospective employer, CMC Unit Trust, lodged another business nomination application. On this occasion, they nominated the applicant for the position of a Facilities Manager. This application was also refused by the department on 11 July 2016.

29. As of the day of my decision the applicant is not employed or has found an Australian company who is an approved standard business sponsor who successfully nominated the applicant for a position within the business. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. It is uncertain if and when he will be able to do so. The tribunal is not disposed to delay making a decision indefinitely. I have taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.

    [3] [2002] FCA 617

    [4] [2012] FMCA 28

30. The purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. The purpose 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 30 June 2015 and he has not commenced employment with another Australian sponsoring company at the time of decision. I give significant weight to this consideration.

    The reason for and extent of the breach

31. The applicant’s visa was subject to 8107 condition. He was represented by a migration agent during the review process. The tribunal is satisfied on the evidence before it that the review applicant was aware of the condition imposed on his 457 visa.

32. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 30 June 2015. I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment 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’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, on this date, the applicant had already being without the employment for more than 12 months. I find that the applicant’s failure to commence employment with a new business sponsor after 12 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

33. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the department

34. There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

35. The applicant claims that the visa cancellation would cause hardship to himself and his wife and that he will suffer financial hardship as a result of visa cancellation.

36. In his submissions he stated that he had been living in Australia in excess of four years and together with his wife made Australia his home. He further submitted that if he returns to his home country he will have no employment opportunities.

37. I accept that leaving Australia may involve some hardship to the applicant and his wife, but I am of the view that this hardship would be significant. I do not accept that the applicant would not be able to re-establish himself in India, given his employment background and experience. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which create no expectation of remaining in Australia permanently. The 457 visa would have ceased in December 2018 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

    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 applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he and his wife will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

39. The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

40. The Tribunal notes that there is consequential cancellation of the applicant’s wife visa. Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

1. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

2. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

   The impact on any victims of family violence

3. There is no evidence before the tribunal regarding this matter.

   Any other relevant matters raised by the visa holder

4. The applicant stated that he has highly sought skill sin Australia and would be able to provide training opportunities to Australian citizens if the visa is not cancelled. There is little evidence provided to the tribunal that either Contract Administrator of Facilities Manager are highly sought occupations in Australia.

5. 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

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

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

   Antonio Dronjic
   Member