1704904 (Migration)

[2018] AATA 4813

1704904 (Migration) [2018] AATA 4813 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704904

MEMBER:Amanda Mendes Da Costa

DATE OF DECISION:  8 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2018 at 9:22am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment terminated – no new nomination – attempts to gain employment – applicant’s medical condition – access to treatment in home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 had ceased employment with her sponsor. 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. The applicant appeared before the Tribunal on 26 September 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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?

7. The visa granted to the applicant included condition 8107. Paragraph 8107(3)(b) in Schedule 8 to the Migration Regulations 1994 (the Regulations) requires an applicant to work only in the occupation listed in the most recently approved nomination for the visa holder and, unless the circumstances in subclause (3A) apply, if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance the applicant’s Subclass 457 visa was granted on the basis that the applicant met the requirements of subclause 457.223(2) or (4).

9. The standard business sponsor who nominated the applicant in the most recently approved nomination for her visa was [Company 1] (the sponsor), whose nomination was approved on 29 September 2015.

10. The delegate found that although the applicant ceased employment with the sponsor on 3 May 2016, neither she nor the sponsor informed the Department that the applicant had returned to work for the sponsor or an associated entity, within 90 days of ceasing employment.

11. The Tribunal is satisfied that the circumstances in subclause (3A) of condition 8107 did not apply to the applicant because her occupation was not specified in an instrument in writing to exempt her from having to meet the requirements of subparagraph 8107(3)(a)(ii).  Therefore, in order for the applicant to be able to lawfully work for another sponsor in Australia, while she held the visa, she would have had to lodge a new Temporary Business Entry Nomination application and the Department would have had to approve it.

12. [The applicant] is a national of Columbia. She holds a Master’s degree in [an area], both obtained in Columbia.  Her employment with the sponsor commenced in late 2015 and was in [a particular] department of the company.  Her role required [the applicant] to be responsible for [certain tasks] in Latin America and Europe.

13. [The applicant] explained that she was successful in her role and initially enjoyed working for the sponsor.  However, after a couple of months in the role she became aware of financial irregularities within the company and identified one of the employees as being responsible for those irregularities.  When she reported the matter to the wife of the company owner, she assumed that action would be taken against the employee.  However, when she became aware that other employees (including those in management) were involved, [the applicant] found herself bullied and isolated within the business and she was subsequently invited by her employer to resign her employment.  After she refused to resign, [the applicant’s] employment with the company was terminated as of [May] 2016.

14. [The applicant] approached Fair Work Australia to obtain advice regarding any legal action which may have been available for her, against her previous employer.  She was advised that such action would be difficult and decided not to progress with such action.

15. [The applicant] told the Tribunal that she wanted to find another sponsor and found another [agency] prepared to offer her employment in its [department].  That company applied to the Department in September 2016 for a Temporary Business Entry nomination for the applicant. That application was refused by the Department on 7 November 2016 and the company subsequently applied to the Tribunal for a review of the refusal decision.

16. The Tribunal’s hearing in respect of the refusal decision was listed for 13 September 2018.  However, prior to the hearing the company decided not to proceed with the nomination for the applicant, and told her that the position was no longer open to her.

17. [The applicant] has not been employed since [May] 2016.  She rents an apartment in Melbourne which she shares with two co-tenants.  [The applicant] supports herself financially with the rent from her co-tenants and savings made during her employment with the first sponsor.  The Tribunal notes that it was provided with a copy of a tenancy agreement in respect of the applicant’s apartment.

18. [The applicant] told the Tribunal that she has been involved in a relationship with a [Mr A] since November 2016.  The Tribunal notes that [Mr A] attended the hearing to support his partner.  [The applicant] told the Tribunal that if her visa is not cancelled, she proposes to lodge a partner visa application on the basis of her relationship with [Mr A].

19. The Tribunal was further provided with a medical certificate by [Dr B] dated [in] September 2018 and a surgical information sheet of the same date.  In his report, [Dr B] confirms that [the applicant] is scheduled to have a surgical procedure [in] December 2018 for a [medical] condition, namely [a medical condition].  [Dr B] further confirms that [the applicant] will require follow-up treatment after the procedure.

20. [The applicant] told the Tribunal that she would have difficulties in obtaining medical treatment in Columbia if forced to return there as she would have no private health insurance in that country and would be required to wait for up to 12 months for her required surgery if she took out health insurance on her return.  [The applicant] has family in Columbia with whom she could live and would seek employment in marketing or human resources. 

21. The Tribunal accepts that Departmental records established that the applicant did not within 90 consecutive days of ceasing employment with the sponsor lodge a subsequent temporary Business Entry nomination application in relation to herself and any other sponsor.  The applicant also confirmed this in her oral evidence.

22. As the applicant ceased employment for more than 90 consecutive days, she did not meet the requirements of paragraph 8107(3)(b) of condition 8107 attached to her visa.

23. 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 visa should be cancelled.

    Consideration of discretion

24. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Purpose of the applicant’s travel and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

25. The applicant arrived in Australia [in] March 2015 and subsequently commenced employment in [a] department of [Company 1].  That employment ceased [in] May 2016 when it was terminated by [the applicant’s] employer.  The Tribunal is satisfied that the termination of her employment was due to the applicant’s identification of malfeasance by other employees of the company and her identification of this rather than any poor performance on her part.

26. The Tribunal places weight on the attempts made by [the applicant] to gain further employment with another employer and her preparedness to engage in the review process when the nomination for the new position was refused by the Department.

27. Whilst living in Australia, [the applicant] has formed a relationship with [Mr A]. The Tribunal accepts this relationship is a genuine and permanent one and that the couple would like to remain together in Australia.

28. The Tribunal notes that [the applicant’s] medical condition, [is] a precancerous condition in which abnormal cell growth occurs on the [body].  The Tribunal accepts that this is a condition if left untreated may lead to [the applicant] developing a cancerous growth.  It further accepts that her current condition requires timely treatment by means of a surgical procedure and follow up treatment and that this is likely to be compromised if [the applicant] is unable to continue residing in Australia and is required to return to Columbia.

    Extent of compliance with visa conditions

29. There are no known instances of non-compliance with visa conditions by the applicant.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30. The Tribunal accepts that [the applicant] is likely to suffer emotional hardship if her visa is cancelled, given that she will be forced to separate from [Mr A], and will have difficulties obtaining timely and appropriate treatment for her [medical] condition.

    Past and present behaviour of the applicant towards the Department

31. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Consequential cancellations under s.140 of the Act

32. There are no persons whose visa would be subject to consequential cancellation under s.140 of the Act.

    Mandatory legal consequences

33. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that she will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

    International obligations including non-refoulement

34. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

35. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Amanda Mendes Da Costa
    Member