1604394 (Migration)

[2016] AATA 4220

1604394 (Migration) [2016] AATA 4220 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vinay Avinash Meera
Mrs Sharlene Jacinta Devi Goundar Meera
Mr Emmanuel Meera
Mr Elisha Esther Meera

CASE NUMBER:  1604394

DIBP REFERENCE(S):  BCC2015/3745252

MEMBER:Rania Skaros

DATE:22 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 22 July 2016 at 11:44am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 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 did not comply with condition 8107 that was attached to the 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. 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicant and his spouse appeared before the Tribunal on 22 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current employer.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Evidence before the Tribunal

8. The applicant was nominated under the Temporary Business Entry visa program by Pawon Pty Ltd trading as Hilands Coffee Food Beverage Wholesale (the former sponsor) in the occupation of Marketing Specialist. That nomination was approved on 19 June 2015 and on that basis the applicant was granted the Subclass 457 visa. 

9. On 16 October 2015 the Department received information from the former sponsor that the applicant had ceased employment with the company on 4 September 2015.

10. On 11 January 2016 the Department issued a notice of intention to cancel the applicant’s Subclass 457 visa on the basis that he may have breached paragraph 3(b) of condition 8107 as more than 90 consecutive days had passed since he ceased employment with the employer that most recently nominated him.

11. On 20 January 2016 the applicant representative wrote to the Department advising that the applicant had a new employer who has applied for sponsorship approval and lodged a nomination in respect of the applicant.

12. On 18 February 2016 the Department issued a further notice of intention to consider cancelling the visa on the basis of adverse information received that the applicant was working for another employer, South Pacific Food Distributors Pty Ltd, who is not an associated entity of the sponsor and that he may have breached paragraph 3(a)(ii) of condition 8107.

13. On 25 June 2016 the applicant’s representative wrote to the Department submitting that the allegations against the applicant are baseless and that the applicant had not commenced working for South Pacific. It was conceded that the applicant had ceased working for the former sponsoring employer for more than 90 days. It was submitted that the nomination by South Pacific in respect of the applicant had been lodged within the 90 days by the Company and that delays in the provision of documents to the Department were caused due to the authorised officer’s need to travel overseas. The representative advised that South Pacific had been approved as a standard business sponsor. It was submitted that the applicant and his family would face undue hardship if the visa was cancelled. The nomination made by South Pacific Food Distributors was refused on 3 March 2016.    

14. The delegate found that the applicant had breached 8107(3)(b) and, when considering matters relevant to the discretion, decided that the visa should be cancelled.

15. On review, the Tribunal received evidence of an approved nomination by South Pacific Food Distributors Pty Ltd, dated 16 May 2016, for the occupation of Marketing Specialist in respect of the applicant together with a submission from the representative. The Tribunal also had the opportunity to take evidence from the applicant and the employer at the hearing.

16. The Tribunal has carefully considered the claims and evidence before it as follows.

    Does the ground for cancellation exist?

17. 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. Of relevance is 8107(3), which provides:

    (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…

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

    …………

18. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

19. On the evidence before it, the Tribunal finds that the applicant was sponsored for a Subclass 457 visa by Pawon Pty Ltd. The nomination in respect of the applicant by Pawon Pty Ltd in the occupation of Marketing Specialist was approved on 19 June 2015.  

20. In relation to paragraph  (3)(b) of condition 8107, the Tribunal finds on the evidence before it that the applicant ceased employment with Pawon Pty Ltd on 4 September 2015. There is no evidence that any other nomination in relation to the applicant had been approved within 90 consecutive days, i.e. 3 December 2015, since he ceased employment with Pawon Pty Ltd. The applicant conceded at the hearing that more than 90 days had passed since he ceased work with Pawon Pty Ltd and the Tribunal so finds. 

21. As more than 90 consecutive days have passed since the applicant ceased employment with Pawon Pty Ltd, the Tribunal finds that the applicant did not comply with condition 8107. 

22. 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

23. 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’.

24. The Tribunal has first considered the purpose of the applicant’s travel and stay in Australia, he circumstances in which the breach arose and whether he has a compelling need to remain in Australia. The Tribunal is satisfied on the evidence before it that the applicant travelled to Australia as the holder a Subclass 457 visa for the purpose of working in the nominated occupation of Marketing Specialist for an approved business sponsor who at that time was Pawon Pty Ltd. At the hearing, the applicant explained that the reason he ceased working for his first sponsoring employer is due to underpayment, mistreatment and threat of visa cancellation. When asked why he had not reported the employer to the Department or Fair Work, the applicant stated that he was new in Australia and was not aware of his rights. The Tribunal explained to the applicant that while it appreciated the reasons he left his former employer, he would have been aware that he had workplace rights, which he could have easily obtained information about from the Department and Fair Work websites, and should have informed himself of the rights and protections afforded to him under Australian Workplace laws. The applicant indicated that he now understands this and is aware of his rights.

25. While the applicant’s failure to report his former employer’s conduct is of some concern to the Tribunal, the Tribunal accepts that the applicant had only been in Australia for a few months and may not have had the opportunity to seek advice before deciding to cease work with his former sponsoring employer. 

26. The Tribunal notes that the ground of cancellation arose because the applicant was not able to secure another nomination within 90 days of ceasing to work for his former employer. The Tribunal has considered the reasons, as submitted by the representative, and accepts that the delay in securing another nomination was due to South Pacific’s lack of understanding about the nomination process, as they attempted to lodge the application themselves, and the delay in providing the documents requested by the Department.

27. The applicant claims that he needs to remain in Australia to maintain his employment with his current employer, South Pacific Foods Distribution Pty Ltd, with whom he has been employed since 20 April 2016. The Tribunal notes that the temporary employer nomination scheme provides for Subclass 457 visa holders to change employers if another nomination in relation to them by a standard business sponsor is approved. The applicant is now the subject of a current approved nomination in the occupation of Marketing Specialist by South Pacific Food Distributors Pty Ltd, who is an approved sponsor, and the Tribunal is satisfied on this basis that the applicant would be able to fulfil the purpose of the 457 visa, that is to work for an approved business sponsor, and this, in the Tribunal’s view, weighs strongly in favour of not cancelling the visa.

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. Departmental records indicate that allegations were received about the applicant working for another employer.  The applicant however has strongly denied these allegations and there is no evidence before the Tribunal to indicate that these allegations have been proven. The evidence before the Tribunal indicates that the applicant was granted permission to work by the Department on 20 April 2016 and he gave evidence at the hearing that he only commenced work with South Pacific Food Distributors on 25 April 2016. The Tribunal further notes that the delegate did not make any adverse findings in relation to the allegations or find that 8107 (3)(a)(ii) had been breached. The Tribunal is satisfied that the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence that the applicant has been co-operative in his dealings with the Department.

29. The Tribunal has also considered the degree of hardship that may be caused if the visa is cancelled. If the applicant’s visa is cancelled he will be prevented by s.48 of the Act from making a valid Subclass 457 visa onshore and would need to depart Australia to lodge the application. The Tribunal also notes that the applicant’s spouse and children’s visas would also be consequentially cancelled and they would also have to depart Australia to be included in the applicant’s offshore visa application. The Tribunal considers that in the circumstances, the applicant and his family would experience financial hardship due to the costs that would be incurred if the whole family had to depart to lodge their application offshore. The Tribunal also accepts that the applicant’s two children, who are in years eight and nine at school, recently commenced a new semester, and is satisfied that the children’s education would be unduly interrupted if they had to depart Australia to apply for their visas.  The Tribunal considers that undue financial, personal and emotional hardship would be experienced by the applicant and his family if the visa is cancelled.

30. The Tribunal also considers that hardship would be experienced by the nominating employer, who gave evidence at the hearing that the applicant, who commenced work with the company in April 2016, has to date made a valuable contribution to the company and that the company had a need to maintain his employment.  The Tribunal is satisfied that the hardship experienced by the applicant, his family and the nominating employer if the visa is cancelled weighs in favour of not cancelling the visa.

    Conclusion

31. Having carefully considered the circumstances overall, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa.  For these reasons, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

33. The Tribunal has no jurisdiction with respect to the other applicants.

    Rania Skaros
    Member