2118422 (Migration)

[2022] AATA 2656

2118422 (Migration) [2022] AATA 2656 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2118422

MEMBER:Alan McMurran

DATE:31 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

Statement made on 31 May 2022 at 4:16pm

CATCHWORDS
MIGRATION – cancellation – Subclass 403 (Temporary Work) visa – visa holder is no longer working for the approved sponsor – left his sponsor was for reasons beyond his control – applicant was prevented from working alongside the person by an ADVO – compliance with the Police order – a truthful witness – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

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 lodged 6 December 2021 for review of a decision dated 2 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the visa holder is no longer working for the approved sponsor, [Company 1] (“the sponsor”) and has therefore failed to comply with a visa condition subject to which the visa was granted. The delegate found that reasons to cancel the visa outweighed those against cancellation.

3. Relevantly, visa condition 8577 was also imposed on the grant of the visa, which required that the applicant must not cease work for the sponsor and must not work for any other sponsor without written approval from the Department.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 23 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant was unrepresented.

6. The hearing was conducted by video in accordance with the Tribunal’s current Practice Direction. The applicant indicated he was ready to proceed and preferred to give his evidence in English. The interpreter however remained present for the majority of the hearing and assisted when requested.

7. 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

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(g).

9. If satisfied that the ground for cancellation is made out, the decision maker must then proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. Discretionary considerations are not defined or limited.

10. The Tribunal has available for consideration the Department file and the Tribunal file together with information provided at the hearing and written submissions from the applicant, which are referred to below. The Tribunal has also taken into account the requirements under the Act, the Regulations and had regard to Department policy.

11. The issue in this case is whether or not a prescribed ground for cancellation applies to the applicant and in the circumstances, if so, to proceed to consider whether the Tribunal should then exercise its discretion to cancel the visa, having regard to all the relevant circumstances including matters of Government policy.

    Background

12. The applicant is a [age] year old citizen of the Republic of Fiji. He is married with 2 [children]. The applicant’s wife and children remain in Fiji.

13. The applicant was granted a Subclass 403 Temporary Work visa (Industrial Relations) Pacific Labour Scheme stream (“the visa”) on 22 October 2019. The applicant arrived in Australia on [date] November 2019, to take up employment with the sponsor.

14. The applicant was located at [City 1] in New South Wales and was engaged to work in a local [workplace]. The applicant travelled to Australia with other citizens from Fiji, who were also on Subclass 403 visas.

15. The applicant explained at the hearing that on arrival in [City 1], they were placed in shared accommodation by the sponsor. He said there were 5 workers living in one house, sharing the rent. He said after 12 months in about September 2020, they were told to find their own accommodation locally. He said he found a 2 bedroom house in a nearby suburb which he agreed to rent. He said his friend from Fiji was in a neighbouring rental property.

16. The applicant outlined the events set out below in his evidence by way of explanation and which were discussed with the Tribunal. The applicant said he left his employment with the sponsor after he refused to return to work on or about 19 October 2020. He has not returned to that employment. The applicant travelled to Sydney in about December 2020, where he is still living as at the time of decision.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(ia) is relevant.

18. The prescribed grounds include that for the purposes of subparagraph 2.43(1)(ia)(ic)[1] the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holder’s visa was granted.

    [1] See application also of r. 2.43(1A) for paragraph (1)(ia)

19. In this case, the applicant’s visa was also subject to a condition 8577, which specifies that:

    8577  If the visa is a subclass 403 visa in the Seasonal Worker Program stream or the Pacific Labour Scheme stream, the holder:

    a)    must not cease to work for the holders sponsor in relation to the visa; and

    b)    must not work for any person other than the holders sponsor in relation to the visa unless the Secretary has given written approval for the holder to work for another specified sponsor and that sponsor:

    i.is a temporary activities sponsor; and

    ii.if the subclass 403 visa is in the Seasonal Worker Program stream-has agreed, in writing, to be the sponsor of the applicant; and

    iii.if the subclass 403 visa is in the Pacific Labour Scheme stream-is endorsed by foreign affairs to sponsor the holder; and

    must not engage in work on the holders own account

20. On 20 October 2021, the Department provided the applicant by email with a courtesy copy of a Notice of Intention to Consider Cancellation (“NOICC”). The original of the notice was sent to the sponsor, being the address for communications with the Department consented to by the applicant.

21. The NOICC set out particulars that on 17 December 2020, the sponsor had notified the Department that the applicant had ceased employment with the sponsor on 30 November 2020. Consequently, the notice informed the applicant that it appeared he no longer had a genuine intention to stay temporarily in Australia to carry out the work in relation to which the visa was granted, namely, working for the sponsor.

22. The applicant was invited to respond, and on 26 October 2021 the applicant sent an email to the Department attaching a copy of a statutory declaration made by him on 26 October 2021, a copy of a court provisional order, a personal request from himself to the Department, and a copy of his visa grant and his passport.

23. The applicant relied upon his declaration which states:

    Respected Sir/Madam,

    My name is [name], D.O.B [deleted], Citizen of Fiji, presently residing at [address].

    This letter you have on your screen is not only the response, but it has all those aspirations and goals in my mind. I chose to work in Australia only because it is a trusted international destination, and I can get a more valuable experience and fetch top notch job placements in Fiji.

    I plead the delegates not to cancel my visa as this will bring me to a dead end when it comes to a career. Sir I make the following declarations under the oath that:

    1. I refer to Notice of Intention to Consider cancellations of my Temporary Activity (International Relations) (Class GD) (subclass 403) visa which was granted on 22nd October 2019.

    2. I lodged my International Relations (subclass 403) on 18th October 2019, and which was successfully granted on 22nd October 2019 and this was sponsored by [Company 1].

    3. I advise that my employer has notified the department that my employment was ceased on 30th November 2020.

    4. Sir everything was going good till October 2020, until was involved in an argument which resulted in stabbing.

    5. There was an argument with my roommate who is a co-worker who stabbed me with a 15cm knife on my left shoulder. This caused me full of pain and was bandaged by my friends.

    6. A day after the incident we had another argument and he punched me approximately 15-16 times with closed fist on face.

    7. I lodged a police complaint and gave my video statement and showed them the injuries.

    8. Police attempted to locate and arrest him, but he was absconding.

    9. He later threatened to kill me, I told my sponsor and showed him the court orders but my sponsor instead of firing him he fired me.

    10. Unfortunately, due to the COVID-19 pandemic, I am stuck in New South Wales, and was not been able to travel and communicate with my sponsor.

    11. Dear Sir, all this happened because of my co-worker who stabbed me, and I was not feeling secured to go back and work there.

    12. I am talking to my employer and he asked me to wait for some time before re-hires me for the position.

    13. Coming to my behavior with the department, I did not breach the condition intentionally.

    14. I have applied for waiver so that I can apply for a COVID visa till the international borders are opened and it is safe to travel back.

24. On 1 November 2021, the Department sent an email to the applicant inviting him to provide any further documents or evidence to support his account of the assault which was reported to police, and which was the event giving rise to the termination of the applicant’s employment.

25. The applicant did not provide any further information in response, although it should be said he had already provided to the Department a copy of a Provisional Court Order made at [City 1] local Court on [date] October 2020, in the nature of an Apprehended Domestic Violence Order (“ADVO”), and upon which he relied.

26. The applicant does not take issue that he has left the employment with the sponsor. The applicant has also not provided any information as to any prospect of continued employment with the sponsor and has confirmed at hearing that he has no intention to resume that employment with the sponsor while the other person remains employed there.

27. On the basis of the information provided in the delegate’s decision record, and the applicant’s own written statement provided above, and his oral evidence at hearing which confirmed the statement set out above was true and correct, the Tribunal finds the applicant falls within the grounds set out in r. 2.43(1)(ia)(ic), and a prescribed ground for cancellation arises.

28. The Tribunal further finds on the information that the applicant is in breach of condition 8577 which applies to the visa, for reason that the applicant has ceased to work for the applicant’s sponsor in relation to the visa. On this basis, the power to cancel is also enlivened by s.116(1)(b) which states the Minister may cancel the visa if satisfied that the visa holder has not complied with a condition of the visa.

29. The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists.

30. As neither ground requires mandatory cancellation under s.116 (3) of the Act for a prescribed circumstance, the Tribunal must proceed to consider whether in the exercise of discretion the visa should be cancelled.

    Consideration of discretion

31. 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’.

    Applicant’s evidence

32. The Tribunal sought to understand the circumstances behind the applicant leaving his employment, what had happened, when and where it had happened, and any consequences and whether they were circumstances beyond his control.

33. The applicant explained that when he moved into his new accommodation in about September 2020, his friend living nearby was visited by a cousin from Fiji, who had arrived in Australia for about 3 months, in late 2019, apparently on a visitor [visa]. He said the cousin had been caught by the border lockdown when the pandemic was introduced around February 2020 and had been unable to leave Australia at the end of his visitor visa. He had been staying at [a city] in New South Wales. He said his friend did not have room to accommodate his cousin, and he agreed he could stay with the applicant during his visit to [City 1].

34. The applicant did not know how long the person would stay with him and his departure was uncertain because of the lockdown. He said this person sought employment in the same [workplace] where he was already working. He said the friend’s cousin, [Mr A], moved in with him in about September 2020 and shortly after also began working at the [workplace]. He said they did not work in the same part of the [workplace] as he was [in one area] and [Mr A] was working in another area. He said he and [Mr A] would travel together with other Fijian workers to and from their workplace.

35. The applicant said he did not know this person and had not met him until introduced by his Fijian friend. He explained that he and [Mr A] had some disputes. The background was unclear and the applicant did not explain in any real detail the background to their arguments, which however arose very quickly. There were only two of them living in the applicant’s two-bedroom home. He explained an incident which happened on the [date] October 2020 at the home, which was witnessed by some other Fijian friends. He said they were celebrating Fiji Day and all had been drinking, except for [Mr A]. They had an altercation where he alleges he was assaulted by [Mr A], but which incident was not immediately reported to police.

36. The applicant said in Fijian culture, they do not usually report each other to police or make complaints. He said however that the arguments continued and he was assaulted again. He said this happened several times and because he was afraid of [Mr A] and what might happen to him, he eventually told his wife about it on 18 October 2020. He said his wife contacted the local police in [City 1], who visited the applicant’s house the same day. The Police made a report on 18 October 2020, a copy of which was produced to the Department and the Tribunal.

37. The Police issued a provisional ADVO against [Mr A]. That matter is still before the [City 1] local Court and the applicant said it is due for hearing on the [date] August 2022. He said he has been called to give evidence for the Police. He said the Police have told him that [Mr A] has been charged with assault and that the applicant will be a witness. The applicant said that [Mr A] had left the share house after the police had come and intervened on 18 October 2020 and issued him a provisional order. The order has been produced and prevents [Mr A] from going within 100 metres of the applicant or any place where he works or the applicant’s share house.

38. The applicant said that [Mr A] is still working at the [workplace] and has not left that employment. He said he does not know why his sponsor allowed that to occur, when they are not supposed to be working at the same place and were aware of the ADVO.

39. The Tribunal asked if this was the reason why the applicant had left [City 1] and his employment. The applicant said he had told his sponsor about what happened and provided the sponsor with a copy of the ADVO. He said the sponsor had declined to terminate [Mr A]’s employment at the [workplace] based on the preliminary order. He said he had informed the sponsor around 19 October 2020 that he would not return to the [workplace] to work while [Mr A] was still there. He said the sponsor then gave him the option to resign and leave the job, which the applicant said he had to do, because he could not work at the same place as [Mr A] from whom he was protected by the preliminary ADVO. He said he did not know what else to do as they could not be in the same place. He did not seek independent advice but accepted the sponsor’s decision not to terminate the other employee. There was no evidence before the Tribunal of any termination by the sponsor. It remains however the fact that the applicant left the sponsor’s employ by the end of November.

40. The applicant said he was told by friends after he had left that he might find work in Sydney. He said at the time he did not understand that it was a breach of his visa condition to leave the sponsor’s employment. He said he did not understand the visa condition at the time. He said he had only spoken with his Fijian friends and it did not occur to him to contact the Department. He said he did not realise there was a problem until he received the email with the notice from the Department. He said he responded to the notice honestly and that what he had said was correct in the statutory declaration as set out above.

41. He said when he received the request for further information about the police action, he did not know what to do which is why he did not respond again. He thought he had already provided all the information that he could.

42. When he received the advice of the cancellation on 2 December 2021, more than 12 months after he had left the sponsor, he said some Fijian friends in Sydney told him to see a migration agent. He said he paid around $3000 to an agent in Sydney to help him lodge the application in the Tribunal on his behalf, to review the decision. Otherwise, he said he had no idea what he should do.

43. The applicant was asked what he had been doing since he came to Sydney in about December 2020. He said it took him a little while to find work and he stayed with some friends firstly at [a suburb] for about seven months and then moved to [Suburb 1]. He said he has been working in [Suburb 1] for two or three months in a warehouse. He said he loads things onto a crane. He said he is paid about $900 a week and sends most of the money home to his family. He said he wants to remain in Australia working, because he is the only provider for his family. He said in Fiji he was a fisherman and if he returns, would go back to the same work. He said he supports his wife and two children, and his wife does not work because she cares for his mother and younger brother, both of whom are blind. He said they have expenses and must travel to Suva regularly for medical reasons.

44. He said he pays rent for a room in a share house of about $150 per week. He said other than the explanation above about leaving the sponsor due to the altercations with [Mr A], he has not had any issues over his visa or any other issues with police. He told the Tribunal in answer to how he might be affected by having to leave the country that it would be very difficult for him to resume his employment as a fisherman and to care for his family. He said he did not have advice at the time when he made the decision to leave his employment and did not know the matters that he is now aware of and which affected his visa. He asked the Tribunal to take those matters into account, saying the fact he left his sponsor was for reasons beyond his control.

1. In his latest submission made 23 May 2022, the applicant said he is “talking to my employer and he asked me to wait for some time before he re-hires me for the position”. At the hearing however he could give no indication whether that might happen and informed the Tribunal he could not work at the [workplace] alongside [Mr A] who the applicant believes from his Fijian friends is apparently still there and with the court outcome against [Mr A] still pending till [ August] 2022.

2. The Tribunal asked the applicant about his intentions to return to Fiji. The applicant said he would like to stay in Australia on his visa to continue earning money to support his family and for the visa not to be cancelled. The Tribunal explained that it was necessary for him to show an intention to stay in Australia temporarily. He said he understood that but thought he would like to stay to continue working on the visa. The Tribunal asked if he had sought any advice about his circumstance. He said he would like a little time to do so. The applicant’s visa expires, but for cancellation, in October 2022.

3. The Tribunal informed him that if he did not have an intention to stay temporarily in Australia, and if he did not work for the sponsor, the applicant would have to return to Fiji, and that would be a reason why the Department decision would be affirmed. He was asked if he needed any time to respond and he said he would like to do so. The Tribunal asked him to provide any information by Monday 30 May 2022.

4. The Tribunal explained to the applicant that it had a discretion in relation to exercising the cancellation power arising based on the available information and that it would take into consideration any further submissions. The Tribunal however did not receive any further response.

5. On 23 May 2022, following the hearing, the Tribunal confirmed the extension of time and sent a natural justice letter to the applicant. The letter informed the applicant that:

   “..information before the Tribunal shows that you ceased employment with your approved sponsor for Subclass 403 visa, [Company 1] , on 30 November 2020, and that you no longer intend to resume that employment.

   This information is relevant to the review because reg 2.43(1)(ia)(ic) and reg 2.43(1A) provide that it is a prescribed ground for visa cancellation under s 116(1)(g) if the holder of a Subclass 403 visa has ceased to have a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which their Subclass 403 visa was granted. The abovementioned information may indicate that you have ceased to have a genuine intention to stay temporarily in Australia to carry out the work or activity for which your Subclass 403 visa was granted, and that you intend to remain in Australia to work for as long as possible.”

6. The Tribunal did not receive any further response or submissions.

   Analysis

7. The Tribunal has considered the following matters in light of the information and evidence provided:

   a.the applicant’s purpose in coming to Australia was for a temporary work visa for a position with the sponsor. The visa was for a period of three years expiring on 22 October 2022;

   b.the information is uncontested that the applicant did not comply with the visa condition that he remain working with the sponsor, because he left that employ on 30 November 2020, a little over 12 months after his arrival, and after working for the sponsor for a period as required in an [workplace] at [City 1];

   c.the applicant’s circumstances before coming to Australia are unchanged in that he had employment as a fisherman beforehand and can return to that employment;

   d.the applicant and his family are quite poor and the family depends upon his income to support them; the applicant will suffer some hardship upon returning to Fiji without his income from his Australian employment;

   e.the circumstances surrounding the applicant leaving his employment and the altercation with another person arguably were not within the applicant’s control. This is because:  

   i.The applicant was living on his own in premises he had leased, and was asked by a Fijian workmate to accommodate a visiting cousin as the applicant had extra room;

   ii.The applicant did not know the person but was following cultural practice in assisting another Fijian with accommodation

   iii.The applicant did not initiate or invite being assaulted by the person while living together

   iv.Others witnessed the incident on Fiji Day and the Police subsequently charged the person and issued an ADVO to protect the applicant from further altercations

   v.The sponsor subsequently invited the applicant to resign, and his employment was terminated when the applicant declined to work alongside the person who was charged, and accepted the sponsor’s offer to resign

   vi.The applicant was prevented from working alongside the person by an ADVO and from whom he was protected and was compelled to seek other employment, did not seek advice as to how to do that, and left [City 1] for Sydney

   vii.The applicant was not aware nor conscious that he could or should have contacted the Department about his circumstances before moving, which is not surprising given the applicant’s limited migration experience and knowledge, and the type of visa, which is designed to locate employees from Pacific islands to work in manual labour activities to supplement the Australian workforce

   f.The Tribunal has taken account of the applicant’s record of compliance otherwise with his visa conditions. There is nothing else in his behaviour that raises concerns and the applicant has according to the Department’s records been compliant and cooperative; the Department however, in considering its Policy, did not accept that the applicant’s circumstances were ‘beyond his control’;

   g.As the applicant’s family are all in Fiji, there are no consequences for the family upon the cancellation decision, which affects only the applicant’s right to remain in Australia;

   h.Following cancellation, the applicant will be subject to a bar against further visa applications for a period, and subject to the Department’s processes. There are however no potential international obligations or non-refoulement consequences which would follow cancellation. Nor are the interests of any children affected.

   i.The applicant has not raised any other relevant considerations which might affect the proper exercise of discretion, and the applicant relies entirely upon the termination of his employment, which he argues was beyond his control, and his subsequent personal circumstances, as reasons not to cancel the visa.

   j.The applicant has expressed his intention to return to Fiji ‘when it is safe to travel back’, which since COVID lockdowns at the time of decision have now finished, and the international border is open, and which in the ordinary course would be on expiry of the visa in October 2022.

8. The Tribunal has listened carefully to the applicant’s submissions and noted the Department’s concern that the applicant might have avoided the circumstances he found himself in and thus not lost his employment in breach of his visa condition.

9. The Tribunal considers that the factual background surrounding the altercations arising with the visitor are unclear and still the subject of judicial determination. The Tribunal accepts, however, for the purposes of this decision, the applicant’s description of the events which aligns with the objective information available including the Police statement, the preliminary ADVO and the sponsor’s advice letter to the Department. The Tribunal does not agree with the Department’s conclusion that the events leading to his work termination were matters within the applicant’s control. The events happened quickly and in a short compass of two or three weeks in September and October 2020. The applicant attempted to ‘low key’ the situation to no avail so that after the initial event with the knife, in front of other Fijians, he was subjected to further altercations in his share house which he could not control, and his wife eventually interceded on his behalf. The Police video interviewed those involved and the applicant was not charged, he was given the benefit of protection, and he was required to give evidence in a pending court proceeding. Those matters weigh in favour of accepting the applicant and finding that he was not in control of the events. As he said in his statement, everything was ‘going good’ for a year until October 2020 when the new person arrived, who was not a sponsored employee, and the arguments occurred. Being threatened with a knife as a result was something the applicant took seriously, was frightened by, and concerned as was his family, and he was left with no option but to leave the sponsor who did not support him.

10. The Tribunal has heard the applicant’s explanation which had it been accepted by the sponsor, may not have led to him losing his employment in the first place. The Tribunal, however, is not entitled to speculate and to make any findings in that regard, but in the exercise of its discretion is entitled to give the applicant the benefit of any doubt about the surrounding circumstances and to which the Tribunal attributes the most weight. The fact the Police have already proceeded and issued a preliminary ADVO is a matter to take into account in weighing up that doubt and determining whether the circumstances surrounding termination of his employment were in fact within his control.

11. True it is that the applicant could have remained in the employment, regardless of the ADVO and not then breached his visa condition. He chose however instead to accept the sponsor’s offer to leave, and in this Tribunal’s opinion, should not be penalised in terms of his visa status for doing so, given the circumstances where his personal safety was deemed at risk by the Police and he had no real choice.

12. The Tribunal has accepted the applicant as a truthful witness. Once the Police had issued a preliminary order, the applicant had to leave the workplace following the decision made by the sponsor, for which the applicant was not responsible, and noting that although the sponsor did not terminate either of them, compliance with the Police order meant one of them had to leave. The Tribunal concludes that the applicant’s departure was a matter therefore beyond the applicant’s control, being within the control of the sponsor, and the Police, and to this extent, finds it has disagreed with the delegate’s finding.

13. Additionally, the Tribunal has considered all of the above matters, including the applicant’s personal circumstances, the general labour shortage in Australia and the need for workers, and taking all matters into account, in the exercise of its  discretion, gives greater weight to consideration that the visa should not be cancelled.

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

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

    Alan McMurran
    Member