1609818 (Migration)

[2016] AATA 4785

1609818 (Migration) [2016] AATA 4785 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHEN HUANG

CASE NUMBER:  1609818

DIBP REFERENCE(S):  BCC2016/1837396

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  13 December 2016

DATE OF WRITTEN STATEMENT:         13 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 13 December 2016 at12:03pm

CATCHWORDS

Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Condition 8107(3)(b) – Ceased employment exceeding 90 consecutive days – First sponsor sold business – No approved sponsor

LEGISLATION

Migration Act 1958, ss 48, 116

Migration Regulations 1994, r.2.12

CASES

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 28 June 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 28 June 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 17 October 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 17 October 2017;

   ·The standard business sponsor who most recently nominated the applicant to work as a Baker (on 15 October 2013) was SBSM Pty Ltd (the sponsor) which operated Bakers Delight Bakery. The department records indicated that the visa holder ceased his employment on 10 February 2016;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued on 17 June 2016;

   ·On 28 June 2016, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the tribunal on 30 June 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 13 December 2016.

6. The applicant appeared before the tribunal on the scheduled date to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who did not attend the tribunal hearing.

7. The applicant is 26 years of age national of China. He is not married. His parents live in China. He has no relatives in Australia. Prior to arriving in Australia in March 2009 as a holder of a Student visa, he had completed the equivalent of year 12 and did not work in China. The highest level of education completed in Australia in 2011 is Diploma in Hospitality.

8. He confirmed in his evidence that he was granted a subclass 457 visa in October 2013, that he received a 457 visa grant notification letter from the department and that he was aware of the conditions imposed on his visa. He commenced employment at Bakers Delight Bakery operated by the sponsoring business in October 2013. His employment ceased on 10 February 2016 as the owners of the bakery sold the business.

9. He managed to find another employer in May 2016. The new prospective employer, Auscam Victoria Pty Ltd (which operated Bread Top Bakery) lodged a business nomination in late May or early June 2016, nominating the applicant for a position of a baker. This nomination application was withdrawn by the prospective employer in July 2016. Since that time, the applicant continued to look for the employment opportunities in Australia but was unable to find an Australian business who is an approved sponsor and who would nominate him for the position within the business. As of the day of the tribunal hearing, he did not sign any employment agreements with prospective employers or received job offers.

10. He stated that he currently holds a bridging visa ‘E’ with no work rights. He gave evidence that he has not been working in Australia since February 2016 and is financially supported by his parents.

11. 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.

12. I explained what are considered to be relevant circumstances according to departmental policy and indicated that in addition to these circumstances I will consider any other relevant matter the applicant raises with the tribunal.

13. He stated that he had been working in the industry for 4-5 years and would like to continue to work as a baker in Australia.

14. 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

15. 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?

16. 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. In this instance condition 8107 was attached to the applicant's visa, which was granted on 17 October 2013.

17. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with SBSM Pty Ltd (the sponsor) which operated Bakers Delight Bakery on 10 February 2016. 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).

18. 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

19. 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’.

20. 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]

21. 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

22. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a baker on a temporary basis. The applicant was unfortunate to lose his job in February 2016. The applicant decided to remain in Australia and try to find a new employer. 

23. I find that it has been more than 10 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 baker. 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 October 2017.

24. 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.

25. I have taken into consideration the applicant’s evidence that he is still looking for the employment in Australia. However, at the time of this decision, the applicant does not have a firm job offer or signed employment agreement with another Australian business willing to sponsor and nominate him for the position of a baker.

26. 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.

27. I find that this purpose no longer exists as the applicant ceased working for his sponsor in February 2016. I give significant weight to this consideration.

    The reason for and extent of the breach

28. 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. The ground for cancellation arose 90 days after the applicant ceased working for his sponsoring employer on 10 February 2016.  

29. I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position 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 commence employment with another sponsoring employer. However, as of the day of this decision, the applicant had already being without sponsor that successfully nominated the applicant for a position within the business for more than 10 months. 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 10 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

30. Whilst I accept that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.  

    Past and present conduct of the visa holder towards the department

31. 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

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

33. I considered the applicant’s claim that he has been in the industry fir 4-5 years and that he would like to continue to work as a baker in Australia. I am satisfied that the applicant would be able to re-establish himself in China, given his employment background and experience.

34. 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 creates no expectation of remaining in Australia permanently. The 457 visa would have ceased in October 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

35. 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.

36. 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.  

37. 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 has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

38. 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

39. 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

40. Not applicable in the circumstances of this case.

    The impact on any victims of family violence

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

42. 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

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

    Antonio Dronjic
    Member