1607954 (Migration)

[2016] AATA 4784

1607954 (Migration) [2016] AATA 4784 (12 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wataru Kajihara

CASE NUMBER:  1607954

DIBP REFERENCE(S):  BCC2016/1236782

MEMBER:Antonio Dronjic

DATE:12 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 December 2016 at 2:38pm

CATCHWORDS

Migration – Cancellation –Temporary Work (Skilled) visa – Subclass 457 Business (Long Stay) – Condition 8107(3)(b) – Ceased employment exceeding 90 consecutive days – Resigned from first sponsor – Business nomination with new employer refused

LEGISLATION

Migration Act 1958, s 116

CASES

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

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]

Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 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. 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.

   Background to the cancellation of the applicant’s visa

3. The decision record of 26 May 2016 provided to the tribunal by the applicant 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 4 June 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 4 June 2017;

   ·The standard business sponsor who most recently nominated the applicant to work as a Sushi Chef (on 19 January 2015) was The Pantry Family trust (the sponsor) who operated Hiro’s Restaurant;

   ·The department received written notification from the sponsor that the visa holder ceased his employment on 27 November 2015;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued on 18 May 2016;

   ·On 26 May 2016, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the tribunal on 1 July 2016 for review of the visa cancellation.

5. On 14 October 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 12 December 2016.

6. On 5 December 2016, the applicant submitted the following relevant documents:

   ·Statement of Facts outlining the applicant’s immigration history;

   ·Copy of the business nomination application form submitted to the department by Oka Group Pty Ltd in November 2015; and

   ·Copy nomination application refusal letter dated 12 May 2016.

7. The applicant appeared before the tribunal on 12 December 2016 to give evidence and present arguments. The tribunal also received oral evidence from Mr William Young, the Director of Oka Group Pty Ltd. The tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

8. The applicant is 33 years of age national of Japan. He is not married. His parents and siblings live in Japan. He has no relatives in Australia.

9. Prior to arriving in Australia in April 2012 as a holder of a working holiday visa, he was working in Japan as a textile factory worker, car factory worker and as a sushi chef. He also worked as a sushi chef in Canada for a period of 3 years during the late 1990’s. The highest level of education completed by the applicant was the equivalent of year 12. He has no formal qualifications to work as a sushi chef and did not attend English language classes.

10. He confirmed in his evidence that he was granted a subclass 457 visa in June 2013, that he received a visa grant notification letter from the department and that he was aware of the conditions imposed on his visa.

11. He commenced employment at Hiro’s Restaurant owned and operated by Pantry Family Trust some two years ago. He resigned in November 2015. He managed to find the new prospective employer, Oka Group Pty Ltd, located in Northern Territory. The prospective employer lodged the business nomination application in December 2015, nominating the applicant for a position of a sushi chef. The applicant confirmed that this nomination application was refused by the department in May 2016.

12. He gave evidence that he has not been working in Australia since 27 November 2015 and that, as of this day, he is not subject of an approved business nomination by a sponsoring business. 

13. He stated that he currently holds a bridging visa ‘E’ with no work rights. He is financially supported by his girlfriend and the director of the prospective employer company, Mr Young.

14. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition of his subclass 457 visa as the period during which he ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

15. I invited the applicant to raise any relevant circumstances with the tribunal. He stated that he managed to find the new employer in December 2015 and it was not his fault that the nomination application lodged by Oka Group Pty Ltd was refused by the department.

    Oral evidence of Mr Young

16. The witness stated that h is the director of Oka Group Pty Ltd which operates Oka restaurant in Darwin. The restaurant currently employs and sponsors two overseas workers who are holding a subclass 457 visa.

17. He confirmed in his evidence that the business nomination application, nominating the review applicant for a position of a sushi chef, was lodged by Oka Group Pty Ltd in December 2015. This application was refused by the department in May 2016. He stated that the business was barred from sponsoring overseas workers for the period of three months from March to June 2016.

18. He stated that, after they received the decision from the department in May 2016, the business did not lodge further nomination applications nominating the review applicant for a position within the business. He explained that his understanding was that the business could not lodge further nomination applications because Mr Kajihara’s visa was cancelled. He further stated that a migration agent from Melbourne told him that Mr Kajihara’s will be precluded from applying for another subclass 457 visa for a period of three years. 

19. The witness confirmed in his evidence that the business did not retain services of a migration agent in respect of the two other employees who were granted subclass 457 visa and who are currently working at the sponsoring business.

20. 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

21. 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?

22. 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.

23. In this instance condition 8107 was attached to the applicant's visa, which was granted on 4 June 2013.

24. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with Pantry Family Trust on 27 November 2015. I further find that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107(3)(b).

25. For these reasons, I am 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

26. 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’.

27. 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]

28. Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.

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

29. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a sushi chef on a temporary basis. The applicant resigned from his job on 27 November 2015 as he wanted to pursue better employment opportunities in Australia. 

30. I find that it has been more than 12 months since the applicant ceased his employment with the company that was an approved standard business sponsor and that successfully nominated the applicant for a position of a sushi chef. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased in June 2017.

31. I accept that the applicant attempted to find another sponsoring employer. However, as explained at the hearing, the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for the employment opportunities. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

32. I have taken into consideration the applicant’s evidence that he has a potential new employer located in Darwin. However, at the time of this decision, the applicant’s prospective employer does not have a pending nomination application with the department nominating the applicant for the position of a sushi chef. The initial nomination application lodged by the Oka Group Pty Ltd in December 2015 was refused by the department in May 2016. Despite of having more than six months to lodge the new nomination application, the applicant’s prospective employer has failed to do so.

33. It is uncertain if and when the applicant will become the subject of an approved business nomination. If the tribunal were obliged to await the decision on nomination application relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek nomination from different businesses, even though such applications may be continuously refused.

34. I find that this purpose no longer exists as the applicant ceased working for his sponsor in November 2015. I give significant weight to this consideration.

    The reason for and extent of the breach

35. The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his 457 visa.

36. The ground for cancellation arose 90 days after the applicant ceased working for his sponsoring employer on 27 November 2015.  

37. Condition 8107(3)(b) was inserted by the Migration Amendment (Temporary Sponsored Visas) Act 2013 (No. 122 of 2013). According to the Revised Explanatory Memorandum (Migration Amendment (Temporary Sponsored Visas) Bill 2013), the purpose of this amendment is to increase the period of time for which the holder of a subclass 457 visa to whom paragraph 8107(3)(b) or 8107(3B)(b) of the Migration Regulations applies can cease to be employed without breaching condition 8107. Such a person can cease to be employed for up to 90 consecutive days (approximately 3 months) before they will be in breach of the condition.

38. The applicant voluntarily ceased working with his sponsoring employer. He had an opportunity to rectify the breach by commencing employment with another sponsor 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 find employment with another employer. However, as of the day of this decision, the applicant has already being without employment for more than 12 months. I accept the applicant’s claim that it was not his fault that the nomination application lodged by Oka Group Pty Ltd was refused by the department.

39. I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated the applicant for a position within the business after 12 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

40. The applicant voluntarily ceased working with his sponsoring employer in November 2015 as he wanted to pursue better employment opportunities in Australia.

    Past and present conduct of the visa holder towards the department

41. 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

42. The applicant did not claim that the visa cancellation would cause hardship to him.

43. In any event, I am satisfied that the applicant would be able to re-establish himself in Japan, given his employment background and experience.

44. Balanced against any potential hardship to the applicant that may result from the visa cancellation is the fact that the applicant was granted a temporary visa which create no expectation of remaining in Australia permanently. The 457 visa would have ceased in June 2017 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

45. If the primary decision is affirmed by the tribunal, the applicant may be required to depart Australia. There is nothing to prevent the applicant from re-applying for 457 visa once he finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

46. I note that a subclass 457 visa applicants must meet the requirements in PIC 4013 and PIC 4014, which do include three year exclusion periods in some instances. However I do not consider these exclusion periods to be applicable in this case, having regard to the ground of cancellation.  

47. The applicant is currently on a bridging visa as a result of the 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 family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

48. I am 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

49. There are no consequential cancellations.

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

50. Not applicable in the circumstances of this case.

    The impact on any victims of family violence

51. There is no evidence before me regarding this matter.

52. Having regard to the findings above and the circumstances of the case as a whole, I am satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.  I am satisfied that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Antonio Dronjic
    Member