1804767 (Migration)

[2018] AATA 5656

1804767 (Migration) [2018] AATA 5656 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804767

MEMBER:Cathrine Burnett-Wake

DATE:7 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2018 at 9:52am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – occupation of Accountant (General) – applicant ceased employment with the sponsor over 90 days – no approved nomination from new employer – claims of pay dispute and sexual harassment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 359, 360, 363
Migration Regulations 1994, Schedule 8 Condition 8107

CASES

Hasran v MIAC [2010] FCAFC 40    

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 19 February 2018 made by a delegate of the Minister for Home Affairs 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 first named applicant (the applicant) ceased employment with her sponsor and therefore breached condition 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.

3. On 23 October 2018, the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act, inviting comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the applicant’s sponsorship by [Business 1] (the sponsor) and the grant of the Subclass 457 visa on 1 June 2015. The applicant was informed that her Subclass 457 visa was subject to condition 8107 – a work restriction which required in part that she must not cease to be employed by her approved sponsor and that if she ceased employment the period must not exceed 90 consecutive days. The applicant was informed that the Tribunal had information indicating she ceased being employed by her sponsor on or before July 2017 and she had therefore not worked for her sponsor for more than 90 consecutive days as at the date the delegate cancelled her visa. The Tribunal informed the applicant that there was no information to indicate that she had recommenced employment with her sponsor and recent checks indicated that there were no new relevant business nominations approved in respect of the applicant since her visa was cancelled in February 2018. The Tribunal explained the relevance of this information and the consequences. The applicant was also invited to provide further information in relation to factors that would be taken into account if the Tribunal found that there was a ground to cancel her Subclass 457 visa.

4. The invitation was sent to the last email address provided in connection with the review and the applicant was advised that, if the comments and/or information were not provided in writing by 7 November 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and/or further information and she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant has not provided a response or comments, or provided information, within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. As a result, a hearing that was set down for 13 December 2018 for the applicant to appear before the Tribunal to present evidence and arguments has been cancelled.

6. The Tribunal is satisfied that the invitation to comment and provide information was correctly sent to the email address provided by the applicant in the review application form. The applicant has not informed the Tribunal of any changes to her email address. The Tribunal also notes that the email enclosing the invitations has not been returned to sender as undeliverable. The Tribunal is satisfied that the applicant was properly informed that a nonresponse may result in the Tribunal proceeding to a decision on the information before it. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

7. 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

8. 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?

9. 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. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

10. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 1 June 2015 on the basis of a nomination by the sponsor in the position Accountant (General) ANZSCO 221111.

11. On 13 September 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department, stating that it appears that she did not commence her employment within 90 days of arriving in Australia. She provided a response to the NOICC on 27 September 2017.

12. As part of her response to the NOICC issued on 13 September 2017, the applicant provided a reference letter from her sponsor dated 01 September 2017. This letter stated that the applicant occupied the position of Accountant until July 2017. The delegate’s decision reflects that the Department made several attempts to contact the applicant and the director of the sponsor to verify this information, however neither the applicant nor the director of the sponsor were available at the business premises. Based on the information provided by the applicant, the delegate considered that she had ceased employment with the sponsor effective July 2017 and thus identified a potential breach of condition 8107(3)(b) of her 457 visa.

13. Subsequently, the Department issued a new NOICC on 22 November 2017. This NOICC stated that it appears that the applicant had ceased employment with the sponsor effective July 2017, which indicates that she is in breach of paragraph 8107(3)(b) of condition 8107 attached to the visa, because she appears to have ceased employment with the sponsor for a period exceeding 90 consecutive days.

14. Information provided by the applicant to the Department indicates she ceased work in July 2017 with the sponsoring company. The applicant made a claim to the Department that she had secured employment with a new employer. In support of this claim she provided a signed employment agreement between herself and [Business 2] to work in the position of Accountant.

15. Although the applicant claimed she had secured new employment the evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of her employment in July 2017.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

16. 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

17. 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’.

18. The applicant claimed, in response to the NOICCs issued by the Department that she left employment because her employer did not pay her wages correctly and additionally because she was a victim of sexual harassment. As a consequence, she claims she has experienced both financial and psychological issues.

19. The applicant made claims to the Department that she reported the issues of sexual harassment to the police; however, the Tribunal notes there is no evidence of a police report, or what, if any outcome arose from her claimed complaint to the police.

20. On 15 February 2018, the Department received a psychologist report submitted by the applicant. The Tribunal notes that the report was written on the basis of self-reporting of the applicant to the psychologist. On that self-reporting basis, the report outlines that the applicant was the victim of workplace sexual harassment and that her former employer failed to properly pay her wages and as a result she suffered psychological symptoms which have affected her decision making capacity along with her general health and well-being.

21. The applicant provided evidence to the Department that in December 2017 she engaged a solicitor to represent her regarding her claim of wage underpayment and sexual harassment.

22. The applicant made a claim to the Department that she had secured employment with a new employer. In support of this claim she provided a signed employment agreement between herself and [Business 2] to work in the position of Accountant.

23. At the time the applicant made the review application, the only supporting document provided to the Tribunal was a copy of the Department’s decision. The Tribunal has no contemporary information before it regarding the outcome of the complaint to the police, her current mental health, nor any legal outcome as a result of action she may have taken independently through her solicitor. Further, the Tribunal has no evidence before it on whether she commenced employment with [Business 2], or whether she was nominated to work for them under the 457 programme. Additionally, according to the checks the Tribunal undertook, and as referred to in the s359A letter sent to the applicant, there were no new relevant business nominations approved in respect of the applicant since her visa was cancelled in February 2018.

24. The allegations made by the applicant against her sponsoring employer, are deeply concerning and nothing short of serious. As such, the Tribunal invited the applicant to provide updated and current information she believed to be relevant to whether her visa should be cancelled. As noted earlier, the applicant did not respond to the Tribunal’s request.

25. As it stands, the claims made by the applicant regarding the underpayment and sexual harassment against the employer are unsupported allegations. As serious as they are, regrettably, no information was supplied to the Tribunal by the applicant in support of her claims. As such, the Tribunal gives these claims little weight in her favour.

26. Notwithstanding the applicant’s claims regarding underpayment and sexual harassment, and even if the Tribunal were to accept them, the Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The evidence before the Tribunal indicates that the purpose of the applicant’s travel to and stay in Australia was to engage in temporary employment for an Australian business, her sponsor, as an Accountant from 1 June 2015 until 1 July 2018. The evidence indicates that the applicant worked for the sponsoring employer until July 2017 when she ceased working for the sponsoring employer and that since that time she has not become the subject of an approved sponsorship/nomination.

27. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to 4 years) for an approved sponsor in an approved occupation. Since ceasing employment with the sponsor in July 2017, the applicant provided evidence that she had obtained employment with a new employer as an Accountant; however, there is no evidence before the Tribunal to demonstrate that she has been able to secure another nomination in relation to this employment.  The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this meant the applicant was not able to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.

28. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted her most recent 457 visa was to work in the occupation of Accountant for the sponsor, that purpose ended in July 2017 (based on her response to the Department in response to the NOICC) when the applicant ceased working for that company. The evidence indicates that although the applicant claimed to have found another sponsor, being [Business 2], approximately 18-months has passed and although she was invited by the Tribunal to provide updated information, no evidence has been provided to demonstrate that she has been able to secure another approved nomination with this company or any other under the 457 visa programme. Further, the checks the Tribunal undertook, the results of which were put to the applicant under s.359A, also reflect no new relevant business nominations had been approved in respect of the applicant since her visa was cancelled.

29. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for her approved sponsor and her inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

30. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions.

31. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as she was unable to secure another nomination within the 90 day period. The Tribunal notes the applicant’s assertions that she has made efforts to secure another nomination, but no evidence corroborative of this has been provided to the Tribunal even though she was provided an opportunity to do so.  The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.

32. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled.  However, corroborative evidence pertaining to claimed financial hardship has not been provided.

33. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if she does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

34. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

35. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor 18 months ago. The applicant can, should she wish to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to her be approved in future.

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

    DECISION

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

    Cathrine Burnett-Wake
    Member