1601836 (Migration)

[2016] AATA 3982

1601836 (Migration) [2016] AATA 3982 (14 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MIREILLE FREITAS RODRIGUES DOS SANTOS

CASE NUMBER:  1601836

DIBP REFERENCE(S):  BCC2015/2369086

MEMBER:Alan Duri

DATE:14 June 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 14 June 2016 at 8:37am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 2016 made by a delegate of the Minister for Immigration to cancel Ms Freitas Rodrigues Dos Santos’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. Ms Freitas Rodrigues Dos Santos was born in 1987 in Brazil.  She first arrived in Australia on 6 October 2011 on a Subclass 570 student visa.  On 9 January 2014 the department granted Ms Freitas Rodrigues Dos Santos a Subclass 457 visa. 

3. The standard business sponsor who nominated Ms Freitas Rodrigues Dos Santos was Armor Australia Pty Ltd.

4. The delegate cancelled the visa under s.116(1)(b) of the Act. The delegate noted that Ms Freitas Rodrigues Dos Santos’s visa was granted with condition 8107. Amongst other things, this condition requires that the visa holder must only work on the occupation listed in the most recently approved nomination for the holder. The delegate noted that the standard business sponsor advised the department on 5 February 2015 that Ms Freitas Rodrigues Dos Santos had ceased employment effective 30 January 2015. The delegate was satisfied that Ms Freitas Rodrigues Dos Santos has not complied with a condition of the visa. The delegate was satisfied that there was a ground the cancelling her visa under cl.116(1)(b) of the Act. The delegate was not satisfied that the grounds cancelling the visa will were outweighed the reasons for not cancelling.

5. The question is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Hearing

6. Ms Freitas Rodrigues Dos Santos appeared before the tribunal on 8 June 2016 to give evidence and present arguments.

7. Ms Freitas Rodrigues Dos Santos told the tribunal that she was employed as a production manager by Armor, a manufacturer of bullet-proof vests.  She said that she managed to work for one year before leaving.  Ms Freitas Rodrigues Dos Santos said she could stand the workplace, particularly after her original manager left in August 2014.  She was the only young female in a team full of middle-aged men. She felt that they never respected her because of her youth. Ms Freitas Rodrigues Dos Santos indicated that she was paid appropriate remuneration and that there were no specific instances of harassment. However she said that the workers were used to working in an all-male environment.  Ms Freitas Rodrigues Dos Santos said she resigned in January 2015 because she could not stand it any more.

8. Ms Freitas Rodrigues Dos Santos told tribunal that she found an organisation willing to sponsor her as a sales manager. However the company was unable to wait and fill the position with another person.

9. Ms Freitas Rodrigues Dos Santos told the tribunal that she wants to apply for a Subclass 189 visa but to date does not have the required points.

10. Ms Freitas Rodrigues Dos Santos said that she is single and in good health.  She is a qualified engineer. She has no family in Australia. Her parents operate a business in Sao Paolo in Brazil. However she stated that there are more opportunities in Australia and that all be ashamed for her to go back to Brazil given the amount of time she has spent in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

12. 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 Ms Freitas Rodrigues Dos Santos’ visa. A copy of condition 8107 is attached to this decision. As far as is relevant to this case condition 8107(3)(b) provides that if the holder ceases employment--the period during which the holder ceases employment must not exceed 90 consecutive days.

13. In this case Ms Freitas Rodrigues Dos Santos ceased work for her sponsor on 30 January 2015.  There is no evidence or suggestion that she returned to work with the sponsor.

14. Therefore the tribunal is satisfied that Ms Freitas Rodrigues Dos Santos has not complied with a condition of her Subclass 457 visa.

15. It follows that 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

16. 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 Ms Freitas Rodrigues Dos Santos’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’.

17. The tribunal accepts that Ms Freitas Rodrigues Dos Santos has a long term plan to migrate to Australia as a skilled migrant. However the tribunal also notes that a Subclass 457 visa is a temporary visa meant to address skill shortages in Australia. 

18. It is common ground that Ms Freitas Rodrigues Dos Santos ceased working in the nominated position.  There is no evidence or suggestion that the employer failed to comply with any relevant labour laws.  The tribunal accepts that Ms Freitas Rodrigues Dos Santos was not happy in her role working in an all male environment. However there is no suggestion that was any harassment or underpayment or any other matter that would make it otherwise inappropriate for her to remain working in an environment. Ms Freitas Rodrigues Dos Santos traces her unhappiness with the organisation to when her previous manager left the organisation in August 2014.

19. Ms Freitas Rodrigues Dos Santos has spent most of her time since 2011 in Australia on various temporary or bridging visas.  The tribunal accepts that there will be some financial cost in Ms Freitas Rodrigues Dos Santos returning to Brazil.  By the same token Ms Freitas Rodrigues Dos Santos is in good health and she has limited ties to Australia. She has no family here. She is single and her immediate family live in Brazil.

20. There are no consequential cancellations under s.140 of the Act.  Furthermore the tribunal finds that Australia not be in breach of its international obligations as a result of the cancellation.

21. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled.

    DECISION

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

    Alan Duri
    Member

    
    

    ATTACHMENT

    Condition 8107

    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)  subject to paragraph (c), the holder must:
       (i)  if the holder was outside Australia when the visa was granted--commence work within 90 days after the holder's arrival in Australia; and
       (ii)  if the holder was in Australia when the visa was granted--commence work within 90 days after the holder's visa was granted; 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:
       (i)  must hold the licence, registration or membership while the holder is performing the occupation; and
       (ii)  if the holder was outside Australia when the visa was granted--the holder must hold that licence, registration or membership within 90 days after the holder's arrival in Australia; and
       (iii)  if the holder was in Australia when the visa was granted--the holder must hold that licence, registration or membership within 90 days after the holder's visa was granted; and
       (iv)  must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
       (v)  must comply with each condition or requirement to which the licence, registration or membership is subject; and
       (vi)  must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
       (vii)  must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (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.