1607052 (Migration)

[2016] AATA 4687

1607052 (Migration) [2016] AATA 4687 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dirk Grahame Wessels

CASE NUMBER:  1607052

DIBP REFERENCE(S):  BCC2016/494574

MEMBER:Marten Kennedy

DATE:23 November 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 23 November 2016 at 4:11pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 10 May 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. Under s.116 of the Act, the Minister may cancel a visa if 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). 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.

   Does the ground for cancellation exist?

3. Condition 8107 was a condition of the applicant’s visa.  Among other requirements, and relevantly, condition 8107 requires[1] that the holder work only in a position in the business of his standard business sponsor or an associated entity of the sponsor: condition 8107(3)(a)(ii)(B).  A further relevant requirement of condition 8107 is that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: 8107(3)(b).

   [1] Paragraph 8107(3) applies only to a subclass 457 visa granted on the basis that the holder met the requirements of cl.457.223(2) or (4) (labour agreements and standard business sponsors). I infer from Departmental records before the Tribunal that the visa was granted to the applicant on that basis.  Paragraph 3A of Condition 8107 excludes circumstances from the application of condition 8107(3)(a)(ii)(B).  None of the circumstances mentioned in 8107(3A) are relevant.

4. The delegate cancelled the visa under s.116(1)(b) of the Act because the delegate found that the applicant failed to comply with condition 8107. On 22 April 2016, the delegate had notified the applicant of an intention to consider cancelling the visa, and advised that it had come to the Department’s attention that the applicant had ceased employment with Tasteful Life Pty Ltd on 21 September 2016.

5. The delegate had concluded that the applicant had failed to comply with condition 8107(3)(b), noting the absence of information to suggest that the applicant had returned to work for the sponsor within 90 days, and noting the applicant could only lawfully work for that sponsor.  The findings of the delegate in this regard conflate the requirements of 8107(3)(a)(ii)(B) and 8107(3)(b).

6. The delegate mentions that a migration agent had provided a response to the Department’s Notice of Intention to Consider Cancelling the visa that did not dispute the ground for cancellation. That response has not been provided to the Tribunal by the Secretary: see s.352 of the Migration Act.

7. At the first hearing in this matter on 21 September 2016, Mr Wessels confirmed that he ceased employment with Tasteful Life Pty Ltd on 21 September 2016.  Mr Wessels further confirmed that he has not since worked for that company or any related entity. Mr Wessels further advised he has not worked elsewhere and has been unemployed in Australia since 21 September 2016.

8. At the first hearing, Mr Wessels drew my attention to a signed contract of employment entered into within a 90 day period of the cessation of his employment with Tasteful Life Pty Ltd.  However, Mr Wessels also confirmed that he did not commence employment under that contract in that he did not work and was not paid.  I observed in any event that if that employment had been commenced, it would itself have constituted a breach of condition 8107 if the employer had not been Mr Wessels’ sponsoring employerat the time.

9. Mr Wessels’ evidence to the Tribunal, corroborating the evidence and inferences drawn by the Departmental delegate suffice for me to find that Mr Wessels has not complied with condition 8107(3)(b). 

10. I find that Mr Wessels ceased employment for a period that exceeded 90 consecutive days, and therefore has not complied with condition 8107(3)(b), and therefore 8107.

    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. As to the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia, Mr Wessels told me that the purpose of coming to Australia was to start a new life in light of difficult circumstances in South Africa. Mr Wessels hoped over time, through the 457 visa system, to permanently migrate to Australia.  Mr Wessels spoke of long-term goals to establish his own business in Australia, but recognised also that the visa in question was temporary.

13. I explained to Mr Wessels that while his longer term goals were understandable and the migration law provided for such migration pathways, I was concerned that the particular visa I was dealing with was granted for the purpose of working in a specified occupation with a particular approved employer. I explained I was concerned that if the visa were to be effectively reinstated, on the evidence before me it would be done in a context of no approved sponsoring employer in place or identified occupation. I suggested this was a difficult discretionary request of the Tribunal notwithstanding other evidence advanced regarding personal hardship of visa cancellation to Mr Wessels.

14. At the hearing, reference was made to very recent expression of interest from a new potential employer in employing Mr Wessels. I explained that evidence of a mere expression of interest at this late stage was unlikely to be sufficient, noting the safeguards for foreign workers and for the Australian labour market will be avoided if the 457 visa is reinstated without a new employer being subject to the various obligation imposed for sponsoring foreign labour.

15. However, in recognition of other evidence given to me regarding personal hardship to Mr Wessels, and my impression that Mr Wessels was giving candid evidence about his intentions and circumstances, I granted an adjournment for the position of the new potential employer to become clearer, including the production of evidence of tangible steps to be taken to regularise arrangements for Mr Wessel in his employment, and for the employer to attend the Tribunal so that I could receive sworn evidence about the employer’s intentions and assess the credibility of those matters for myself.

16. In this regard, I have also noted that Mr Wessels’ visa would expire in any event on 7 January 2017 (if it were effectively reinstated), and so I can considered the exercise of the discretion required that I know more about the potential employer’s intentions beyond the life of this particular visa.

17. On 24 October 2016, the Tribunal received correspondence attaching evidence that a business by the name of All Out Africa Pty Ltd had applied to become a Standard Business Sponsor and had lodged a nomination for a position of restaurant manager for a restaurant in Rouse Hill NSW.  I was also asked to make new arrangements for the hearing to accommodate Mr Wessels and a witness, as Mr Wessels had relocated to Sydney to pursue this employment.

18. A new hearing was arranged for the purpose of me receiving evidence from the new employer.  However, when the second hearing commenced on 11 November 2016 via videolink to Sydney, Mr Wessels informed me that there would be no witnesses. 

19. I confirmed that Mr Wessels had understood the purpose of the previous adjournment and the importance I had placed on being able to receive evidence from his potential new employer.  In these circumstances, Mr Wessels acknowledged it was a difficult question for him to answer as to why no representative of the potential new employer had attended the Tribunal.  Mr Wessels told me he had been confident that the new employer would be there.

20. Mr Wessels told me he had travelled from Perth to Sydney to assist with preparations for the opening of a new venture with his potential employer.  He told me he was staying with the owners of the business.  Mr Wessels told me the business was not currently operational but would be opening soon.  Mr Wessels believed he was being paid salary, but none had yet been received, and he had not completed paperwork with the Australian Taxation Office regarding his new employment.

21. I reiterated my concerns to Mr Wessels about the failure of a witness to attend at the Tribunal to give evidence in relation to sponsorship, nomination and future employment for him.  At the conclusion of the hearing I explained that I would not be making the decision for a number of days, and would entertain any request for a third hearing for this purpose in the event Mr Wessels was successful in emphasising the significance of this evidence with the employer. There has been no further contact with Tribunal.

22. As to the purpose of Mr Wessels travel to and stay in Australia, including whether there is a need for him to remain in Australia, I am not satisfied that exercising the discretion so as to not cancel the visa would be consistent with the purpose of the subclass 457 scheme. I am concerned that the prospective employer has not made themselves available to give evidence to the Tribunal about this important matter.  Particularly where the second hearing was arranged expressly for this purpose, I draw an adverse inference from the absence of the employer.  I have taken into account that an application for approval as a standard business sponsor and nomination is on foot, but place little weight on this administrative step in circumstances where the employer has not attended the Tribunal to elaborate.

23. Mr Wessels explained that the owners of the business were perhaps busy, but this is an unacceptable explanation.  I am concerned that an employer would lodge paperwork with the Department of Immigration for approval, but not be prepared to attend at the Tribunal in these circumstances.  I am not confident that any expressed intention for Mr Wessels to be employed within the framework of the subclass 457 visa scheme by this employer is genuine.  I consider in these circumstances that exercising the discretion so as not to cancel the visa would reinstate a subclass 457 visa to Mr Wessels outside the applicable framework.

24. I place significant adverse weight on this consideration in reflecting on the purpose of Mr Wessels stay in Australia.

25. I explored further with Mr Wessels the circumstances in which the ground for cancellation arose, and in particular the circumstances in which his previous employment ended.  Mr Wessels explained that he had become aware that the owners of the sponsoring business had made enquiries of other companies in the group about whether they might employ Mr Wessels even before he had arrived in Australia.  Mr Wessels also said that he had come to Australia on the understanding that he was to be trained in Australian requirements for his occupation, but no such training was given.  Mr Wessels explained that his employment was terminated within 3 months because the employer was not satisfied with his performance. He was told in a meeting that he did not conform to their standards, but he thought other issues were at play.  Mr Wessels has not taken action for unfair dismissal.

26. I take into account the circumstances in which the ground for cancellation arose.  I do not feel I am fully informed about those circumstances, having only heard about those circumstances from Mr Wessels’ perspective. However, I view these circumstances as neutral, in the sense that the employment relationship between Mr Wessels and his sponsor was unsuccessful.  I do not place any adverse weight on these circumstances beyond the fact that it led to the breach of the visa condition.

27. As to Mr Wessels’ past and present conduct towards the department, there is no adverse information before me.  I have no information or evidence to indicate other breaches of visa conditions.  No other person would be affected by mandatory legal consequences of cancellation.  There is nothing to indicate that indefinite detention would be a possible consequence of cancellation.

28. As to Australia’s international obligations, Mr Wessels described in general terms difficulties confronting people in South Africa.  Mr Wessels did not describe circumstances where he would personally be targeted for harm in South Africa.  In any event, Mr Wessels has a legal right in Australia to make an application for a protection visa if he believes Australia has protection obligations in respect of him.   Where this capacity to apply for a protection visa exists, I do not consider that visa cancellation would place Australia in breach of its international obligations.

29. As to Mr Wessels’ personal circumstances, including the degree of financial, psychological, emotional or other hardship that may be caused by visa cancellation, I accept that visa cancellation will cause Mr Wessels significant hardship.

30. Mr Wessels described financial commitments in Australia, and foresaw that he would have difficulty finding work should he return to South Africa.  I place limited weight on Mr Wessels’ concerns in this regard as he also described a long history of employment in South Africa giving rise to his skills and qualifications for the position he was nominated to fill in Australia.  I accept however that Mr Wessels feels he has little to return to in South Africa, having lost many of the support networks that he once had. I accept it would be a difficult and unwelcome adjustment for Mr Wessels to return to South Africa.  Having regard to Mr Wessels’ evidence about his intentions in coming to Australia in the first place, I also accept that return to South Africa will be disappointing for him.

31. On balance however, while this hardship may justify a favourable exercise of discretion in circumstances where a new employer was genuinely willing to take on sponsorship obligations in respect of Mr Wessels, I am not satisfied that is the case.  I remain concerned that effectively reinstating a subclass 457 visa to Mr Wessels outside the subclass 457 visa framework of protections and obligations would not be an appropriate exercise of my discretion, and I decline to exercise the discretion in that way.

32. I have considered all circumstances known to me, and have decided on balance that the visa should be cancelled.  In addition to the consideration of various matters set out above, I would exercise the discretion in this way because I would place greater weight on my concerns about effectively reinstating a subclass 457 visa to Mr Wessels outside the framework of the subclass 457 visa scheme than I would on personal hardship faced by Mr Wessels.

    DECISION

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

    Marten Kennedy
    Member