1612826 (Migration)

[2016] AATA 4839

1612826 (Migration) [2016] AATA 4839 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yee Mei Chan

CASE NUMBER:  1612826

DIBP REFERENCE(S):  BCC2016/2429425

MEMBER:Stavros Georgiadis

DATE:21 December 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 21 December 2016 at 4:51pm

CATCHWORDS

Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Condition 8107 – Ceased employment exceeding 90 consecutive days – Lack of funds for position – No compelling circumstances – Attempts to mitigate the circumstances – Attempts to secure suitable employment – Can easily re-establish life again in Malaysia

LEGISLATION

Migration Act 1958, s 116(1)(b), cl.1807(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 August 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 of the visa as the delegate found that the period during which the visa holder ceased sponsored employment exceeded 90 consecutive days [cl.8107(3)(b)]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. A copy of the delegate’s decision was attached to the application for review.

3. The applicant appeared before the Tribunal on 21 December 2016 to give evidence and present arguments.

4. 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

5. 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. 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?

   s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister, or the Tribunal on review, is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. This condition requires relevantly, that for other than an exempted occupation (not evident in this case) an applicant, while they continue to hold a 457 visa can only lawfully work in Australia for either the sponsor or an associated entity, and where the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: cl.8107(3)(b).

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for her 457 visa is the University of Western Australia.

8. The applicant first came to Australia on 28 February 2011. She was granted a Student (Class TU) 573 visa whilst she undertook a Bachelor of Science degree which she has now completed.  The applicant has been living with her aunt in Western Australia for the past 6 years.  The applicant’s Temporary Work (Skilled) (subclass 457) visa was granted on 19 January 2015 valid for 4 years with the nominated sponsor, the University of Western Australia. The applicant was engaged in the occupation of tutor with the sponsor. The visa was subject to requirements of work limitation 8107.

9. The applicant’s evidence is that she secured employment with the University of WA as a tutor from 17 November 2014 on a fixed term contract to end (initially) on 31 December 2015.  This was extended for a further three months to 1 April 2016.  As university funds were not available for ongoing work, her work contract was not renewed.  She has been looking for alternative work for almost 18 months, starting her job search in June 2015 well before her contract ended in anticipation that the contract may not be renewed.  Despite searching for alternative work for this period the applicant remains unemployed after 1 April 2016.

10. At the hearing the applicant’s oral evidence confirmed that she had ceased her employment with her sponsor on 1 April 2016 and had not been re-employed since.  The department received written advice from the applicant’s sponsor confirming that the applicant had ceased employment with effect from 1 April 2016.

11. The applicant has been seeking sponsorship from any new employer within 90 days of the end of her employment with the University of WA but to date this has not been successful.

12. The Tribunal notes the applicant’s oral evidence that just before the end of the 90 day period after ending her employment she notified the department that she was not longer employed with the sponsor (or indeed any employer).  There is no evidence before the Tribunal that the applicant returned to any work or was again working for the sponsor or an associated entity within 90 consecutive days of ceasing that employment.   

13. The occupation of tutor is not one specified in the relevant instrument referred to in paragraph 8107(3A) to exempt the visa applicant from having to comply with the requirements of paragraph 8107(3)(a) and this was conceded at the hearing by the applicant.

14. The Tribunal accepts from the applicant’s oral evidence at the hearing that the visa holder ceased employment with her sponsor exceeding 90 consecutive days.  Therefore, the applicant has breached condition 8107(3)(b) of condition 8107 attached to her visa.

15. 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

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 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’.

17. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia is to enable her to remain in Australia to work for the approved sponsor, University of Western Australia as a tutor. The Tribunal also accepts that the visa granted to the applicant ended as a result of the sponsor’s fixed term employment ending on 1 April 2016 after initially being extended by 3 months beyond 31 December 2015. The Tribunal has considered that the applicant’s 457 visa was in the first instance, not due to lapse until 19 January 2019.  In circumstances where the visa was not cancelled and the sponsorship continued, the sponsor’s obligation towards the applicant would potentially have continued until that date.  The Tribunal considers there is no compelling need in relation to the stated purpose for the applicant to remain in Australia given that the sponsored employment has ended.

18. The Tribunal considered the applicant’s past and present conduct towards the department, noting nothing adverse raised by the department in respect of compliance with any other conditions subject to which the applicant’s visa was granted - other than the present 8107 breach.  In respect of the applicant extent of (non)compliance, the Tribunal considers the breach of this condition is a significant breach but places weight on the fact that otherwise, the applicant has not been the subject of any other breaches noted, such as when she held her Student visa.  The applicant’s volunteering as an administrative officer at her local church in Perth is unpaid (with no other ‘in kind’ benefits provided) and the Tribunal accepts that this is not in breach of her WE-050 Bridging visa, which has work restrictions applied of no-work.  The Tribunal accepts that she remains ready, willing and able to undertake any new sponsored work available.

19. The Tribunal notes also that the applicant advised the department of the circumstances relating to the end of her employment with the sponsor before the end of the material 90 day period and that this was initiated by the applicant before the Notice of Intention to Consider cancellation (NOICC) advice was sent to her on 9 August 2016, all of which acts in her favour.

20. The Tribunal has also considered the applicant’s presentation, demeanour and the context of her answers which she provided in a straightforward and spontaneous manner in response to matters asked of her at the hearing. The Tribunal observed that the applicant did not appear evasive to questions put to her or the responses sought. The Tribunal was impressed with the applicant as a witness of truth.

21. The Tribunal also places weight on the circumstances in which the ground for the cancellation arose following the end of her fixed term employment with the sponsor on 1 April 2016.  The Tribunal considers the applicant has mitigated her circumstances by attempting to secure suitable work with other employers who might be considered for a new sponsorship and that she had commenced this as soon as she became aware, at the end of January 2016, that her employment contract would not be renewed.  The Tribunal further accepts that the applicant continued this search for work throughout the period after her employment with the University of WA ended and before the 90 days had expired.  The Tribunal accepts that the applicant has attempted to mitigate the circumstances in which she found herself at the time, but also places substantial weight on the fact that it has been well in excess of 6 months since the end of her employment with the sponsor without any further sponsorship nomination.

22. In respect of any hardship that would be caused to the applicant if the visa is cancelled, the Tribunal notes the applicant is not partnered and has been supported financially and in other ways by her aunt, Ms Choy Yin Lee, with whom she has been residing in Australia over the past 6 years or so.  The aunt was also present at the hearing to provide support for the applicant. The Tribunal accepts that the applicant has access to other support from her parents who are retired and living in Malaysia in their own home that they own. 

23. The Tribunal has considered the evidence that the applicant was able to work part-time whilst she was a student (approximately 20 hours per week on average) and also full-time as a tutor with the sponsor over a period of some 18 months.  The Tribunal accepts the applicant’s oral evidence that she had savings of approximately $5,000 when her 457 visa was cancelled by the delegate’s decision of 9 August 2016.    

24. The Tribunal accepts the applicant’s evidence that from her savings together with a loan of $20,000, she was able to purchase a new motor vehicle, a 2015 Honda City sedan, for $25,000. The Tribunal accepts the evidence that there is $13,000 remaining outstanding on that loan and that this may be settled by the sale of the vehicle with the remaining equity in the vehicle being used to pay out the balance of the loan.  In this regard, the Tribunal does not accept the applicant’s submission that she will suffer financial hardship due to her remaining loan balance if her visa is cancelled. 

25. The Tribunal accepts that refusal of the visa would result in substantial disruption to the applicant relating to her established family life in Australia living with her aunt, but considers that this (without more) does not amount to sufficient financial, emotional and other hardship to justify the granting of the visa . The Tribunal has considered this in the context of the applicant’s overall circumstances discussed above and below.

26. The departmental records show no other applicants are holding a visa in Australia due to the applicant’s visa. Therefore, should the applicant’s visa application not be successful, this will not result in consequential cancellation by operation of law under section 140 of the Act in respect of any remaining applicant members of her family unit.  Should the visa be cancelled, the applicant is able to avoid detention in Australia (for being present unlawfully on shore), by adhering to the department’s requirements to leave the country within the time frames stipulated. There is nothing before the Tribunal to suggest that indefinite detention is a possible consequence of cancellation, or that there are provisions in the Act which will prevent the applicant from making a valid visa application without the Minister’s intervention.

27. The Tribunal notes the considerable period of time that the applicant has been in Australia since 2011 and accepts that the applicant has had the benefit of time to establish herself in Australia and its society. However, the Tribunal has also considered the situation in the applicant’s home country, Malaysia.  The Tribunal accepts that she will have substantial support from her retired parents there to assist her to re-establish her life in Malaysia, particularly given that the applicant has secured tertiary qualifications in Science and a good command of English with other work skills from a demonstrated employment history.  The Tribunal considers that the applicant will have financial, emotional and other support from being able to reside in the same household owned by her parents in the town of Ipoh in Perak state, Malaysia which the applicant confirmed in her oral evidence.  There are also other siblings in Malaysia, although it is acknowledged that they reside in different states to where the parental household is situated.  There are no other siblings presently living in Australia.

28. There is no application by the applicant before the Tribunal for any Protection or Complementary Protection claims under the United Nations Refugees Convention and other conventions or any claim that Australia’s international obligations would be breached if the visa is cancelled. The applicant confirmed to the Tribunal, when asked at the hearing, that she has been able to travel freely to and from Malaysia and Australia noting that she has done so approximately every year, without hindrance, since first coming to Australia in 2011.

29. In light of this, there appears to be no reason before the Tribunal to suggest that removal of the applicant if necessary, would lead to a breach of Australia’s non-refoulement obligations under the United Nations Refugees Convention for Protection or in respect of Complementary Protection but makes not determination on this here as this is not before the Tribunal in the present instance. There is no suggestion or evidence of separation or any victims of family violence in this case.

30. The Tribunal has carefully weighed up the above factors overall and has concluded, on balance, that these act in favour of exercising the discretion to cancel the applicant’s visa, which outweigh the grounds for not cancelling.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stavros Georgiadis
    Member