1601439 (Migration)

[2016] AATA 3933

1601439 (Migration) [2016] AATA 3933 (18 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bernard Tendai Ganyani

CASE NUMBER:  1601439

DIBP REFERENCE(S):  BCC2015/3745839

MEMBER:Carolyn Wilson

DATE:18 May 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 18 May 2016 at 10:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 2016 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 failed to comply with a condition of his visa. 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 appeared before the Tribunal on 13 May 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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 was attached to the applicant’s visa. Condition 8107(3) requires the following:

   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[1]:

   (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…

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

   [1] 8107(3A) does not apply in this case.

8. On 20 July 2015 the sponsoring employer The Graviety Group Pty Ltd advised the Department the applicant ceased employment with them on 17 July 2015.   The applicant does not dispute that he has not worked for his employer since July 2015, although he does dispute that he was dismissed on that date.  In his mind there had been a falling out with his employer and he was waiting for them to apologise and call him back into work.  However, the applicant has never returned to work for his sponsor, nor has he worked anywhere else since that time.

9. The applicant ceased working for his sponsor on or around 17 July 2015.  He has not been working in the business of the sponsor, or an associated entity, and had ceased working there for a period exceeding 90 consecutive days.

10. 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

11. 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’.

12. The applicant asks the Tribunal to take into account his vulnerability as a 457 visa holder and the mistreatment by his employer.  He claims to have commenced working for the sponsor in March 2015 but that he was never paid any wages by them.  He was told to pay all the fees associated with the sponsorship application, and that once the visa was granted he was told to pay another $30,000 or they would tell the Department they were withdrawing sponsorship

13. The Tribunal is concerned by the applicant’s allegations of mistreatment by his employer, and considers that if the Department has not yet done so, should investigate the allegation and reconsider the status of the employer as a Standard Business Sponsor.  It notes the applicant commenced action in the Fair Work Commission in relation to his dismissal and non-payment of wages.  That action is ongoing. However, the Tribunal is also concerned by the applicant’s role in the scheme.  He has provided evidence in the form of text messages demonstrating he was being asked to make payments at time of the sponsorship and visa applications, and during the time he was not paid any wages.  He was on notice they would not continue to sponsor him if he did not pay. The applicant provided bank records to demonstrate he made these payments to the sponsor.  As put to the applicant at hearing, the Tribunal finds the applicant is implicated in paying his way for a visa outcome, when he knew there was not a genuine position with the sponsor.  What the applicant appears not to have anticipated was the amount the sponsor would later demand; an amount he could no longer afford to pay.

14. The Tribunal gives significant weight to the purpose of the visa.  That is, the visa allows skilled workers to work temporarily in their nominated occupation.  The applicant has a Master’s degree in Marketing, and was approved to work in the occupation Sales and Marketing.  He has told the Tribunal in fact he did little marketing for the nominated employer as they pushed him to do sales work.  He also told the Tribunal he has been unable to find any work in Marketing since leaving his employment in July 2015, as it’s hard to get work in that field.  He claims however to have found a potential employer in Melbourne who is willing to employ him as a Farm Manager.  The applicant has not worked in his nominated occupation for at least 9 months and probably did not work in the occupation when employed by his sponsor.  There appears to be no prospect of the applicant working in his nominated occupation in the near future, and the Tribunal considers this a strong factor in the exercise of the discretion to cancel the visa. 

15. The applicant says the visa cancellation has caused him financial hardship, and that he owes money to the National Australia Bank and the Australian Taxation Office.     

16. The Tribunal finds there is no-one who would be affected by a consequential cancellation under s.140.  The applicant told the Tribunal he married this year, but his wife has her own visa application and is not a secondary applicant on his visa.  There is no suggestion any international obligations would be breached for the applicant.  He expressed a preference not to return to Zimbabwe because of high unemployment and possible unrest at the next elections there, but he did not raise any claims relevant to Australia owing him protection obligations.

17. In relation to any mandatory legal consequences, the Tribunal notes the applicant may be liable to detention if he does not depart voluntarily or make another valid visa application.  The Tribunal considers these are intended consequences of the legislation. 

18. In considering all the relevant factors, the Tribunal has given greater weight to the purpose of the visa, that is, for the applicant to work in Australia temporarily in his skilled occupation for an approved sponsor, than to the mistreatment by the sponsor, the financial hardship and intended consequences the cancellation will cause.  The Tribunal gives particular weight to the applicant’s inability over 9 months to find alternate work in his nominated occupation, and the lack of prospects of him finding such work in the near future. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

    DECISION

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

    Carolyn Wilson
    Member