Abujen (Migration)

[2017] AATA 1533

Abujen (Migration) [2017] AATA 1533 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jerry Bausa Abujen

CASE NUMBER:  1604207

DIBP REFERENCE(S):  BCC2016/402460

MEMBER:L. Hawas

DATE:4 September 2017

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 04 September 2017 at 7:39pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Applicant ceased sponsored employment over 90 days – Sponsoring business ceased operation – Nomination application refused for new employer – Issues with migration agent

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b), 140

Migration Regulation 1994, Schedule 2, r 2.12, Condition 8107

CASES

Re Drake (No. 2) (1979) 2 ALD 634

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 March 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 applicant’s visa was subject to condition 8107(3)(b), which provided that if he ceases employment with his nominated employer, the period during which he ceases employment must not exceed 90 consecutive days. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Act on the grounds that the applicant breached condition 8107(3)(b) by ceasing employment with his nominated employer for more than 90 consecutive days. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.

3. The delegate’s decision record, which the applicant gave to the Tribunal in the review, recorded the following:

   (a)On 6 May 2014, the applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 6 May 2018;

   (b)The standard business sponsor who sponsored the applicant for his 457 visa was Ocean Shores Smash Repairs Pty Ltd (trading as John Dwyer Smash Repairs) (Ocean Shores). The applicant worked for Ocean Shores in the approved position of panel beater;

   (c)By notice of intention to cancel the applicant’s visa dated 10 February 2016, the department notified the applicant that Ocean Shores had informed it that the applicant ceased employment with that company on about 28 August 2015. The notice stated that the applicant had apparently breached condition 8107(3)(b) of his visa, and that the department was considering cancelling it. The notice sought a written response from the applicant. The applicant did not respond;

   (d)Information on the department’s systems revealed that a fresh application to nominate the applicant for a 457 visa had not been brought at the time of the delegate’s decision, and the applicant had not otherwise applied for any fresh visa. Accordingly, the applicant did not have a legitimate migration purpose for remaining in Australia;

   (e)The applicant had not breached any other visa conditions and had always co-operated with the department;

   (f)The applicant had breached condition 8107(3)(b) of his visa; and

   (g)In all of the circumstances before the delegate, she considered the appropriate exercise of her discretion favoured cancelling the applicant’s 457 visa.

4. On 28 March 2016, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel his visa. The applicant was then granted a bridging visa E, which allowed him to remain in Australia pending the outcome of the review. That visa carried with it work rights while the applicant awaited the outcome of the review.

5. By letter dated 21 October 2016, the Tribunal notified the applicant that it had considered the material before it but was unable to make a favourable decision on that material alone. The Tribunal invited the applicant to a hearing on 9 November 2016 at which time he could give oral (and any written) evidence and present his arguments.

6. The applicant appeared before the Tribunal at the hearing on 9 November 2016 to give evidence and present arguments. The applicant was represented in the review by his registered migration agent at the time. That representative attended the hearing.

7. The applicant appeared before the Tribunal at a subsequent hearing on 18 July 2017. By this time, the applicant had retained a new migration agent. The applicant’s new representative attended the second hearing. The applicant encountered significant difficulties with his first migration agent. As a result, the applicant’s circumstances were not adequately communicated to the Tribunal after the first hearing. Hence the need for a second hearing. Those difficulties are referred to further below.  Both Tribunal hearings were conducted with the assistance of an interpreter in the Tagalog (a dialect used in the Philippines) and English languages.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substituted by a decision not to cancel the visa.

   Consideration

   Does the ground for cancellation exist?

9. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

10. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the applicant’s visa contained condition 8107(3)(b), which provided that the applicant must not cease employment with his nominated employer (or an entity associated with the employer) for more than 90 consecutive days.[1]

    [1] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the applicant’s visa was subject to condition 8107.

11. During the Tribunal hearings, the applicant said that he did not leave employment with Ocean Shores voluntarily. He wanted to stay with Ocean Shores. But Ocean Shores’ business suffered a downturn, and by late August 2015 it could not afford to keep the applicant employed any longer and terminated him.

12. During the hearings, the applicant accepted that the delegate had lawful grounds to cancel his 457 visa. He ceased employment with Ocean Shores in late August 2015 and did not return to work for Ocean Shores at any time during the subsequent 90 days.

13. On the evidence before the Tribunal:

    (a)It is satisfied that the applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b). The visa was granted on 6 May 2014, and would have, but for its cancellation, remained effective until 6 May 2018;

    (b)It finds that the applicant ceased employment with Ocean Shores in late August 2015. The period during which the applicant subsequently remained unemployed exceeded 90 consecutive days; and

    (c)It finds that the applicant breached condition 8107(3)(b) of his 457 visa.

14. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the applicant’s visa.

15. As those grounds do not require mandatory cancellation of the applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    The discretion

16. The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[2] However, PAM3 constitutes a useful starting point for the exercise of the discretion.

    The purpose of the applicant’s travel to and stay in Australia

    [2] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.

17. The applicant was born in the Philippines on 21 July 1974. He is 43 years old. He is married with two children; one eight and one ten. His wife and children live in the Philippines.

18. The applicant first arrived in Australia on 25 May 2014. He arrived on his 457 visa, which was granted on 6 May 2014. Before arriving in Australia, the applicant was able (with the assistance of an employment agency) to secure employment with Ocean Shores as a panel beater, ultimately obtain a 457 visa.

19. The applicant said that after Ocean Shores terminated his employment in August 2015, he began looking for alternative work immediately. In September 2015 (and within 90 days of ceasing work with Ocean Shores), the applicant commenced a trial work period (‘a test’) with SR Enterprises Pty Ltd (SR Enterprises) trading as United Panel Works with a view to SR Enterprises offering him permanent work as a panel beater if it was satisfied with his work performance. After working for SR Enterprises for about a month, Scott Reddy, SR Enterprises’ principal, offered the applicant a full-time job as a panel beater, and told the applicant that he would need to cease the trial with SR Enterprises in order to ‘work on his papers’. The applicant understood ‘work on his papers’ to mean transferring his nomination from Ocean Shores to SR Enterprises. The applicant signed a contract of employment with SR Enterprises in September 2015 (which the Tribunal cited during the hearings).

20. The written evidence of SR Enterprises’ nomination and other applications relevant to the applicant in this review since September 2015 was unsatisfactory. It is for applicants and their representatives to bring forward all information relevant to a review like this one. That did not occur in this case. Throughout the review process, the Tribunal was required to embark on enquiries and unearth facts for the applicant. That is not the function of the Tribunal. But the Tribunal is satisfied that this lack of clarity was not entirely the fault of the applicant and SR Enterprises. Some of the blame lies with the applicant’s former migration agent (and that of SR Enterprises).

21. As far as the Tribunal can tell from the documents submitted on the applicant’s behalf and the records on ICSE:

    (a)On 14 December 2015, SR Enterprises applied to nominate the applicant for a 457 visa;

    (b)On the same date, SR Enterprises applied for approval as a standard business sponsor. The applicant produced to the Tribunal at the first hearing on 9 November 2016 a letter from the department to SR Enterprises dated 14 December 2015, which acknowledged SR Enterprises’ nomination application[3];

    (c)On 28 January 2016, the department refused SR Enterprises’ application for approval as a standard business sponsor, and it appears that the department refused the nomination application as a result;

    (d)The department then cancelled the applicant’s 457 visa on 22 March 2016;

    (e)After lodging this application for review with the Tribunal on 28 March 2016, the department granted the applicant a bridging visa E with work rights. It appears that despite being represented before the first hearing, the applicant did not know that he was entitled to work pending the outcome of this review. The applicant said at the first hearing that he had not worked since late 2015, and he had been borrowing money from his relatives to support himself while he awaited the outcome of the review. The applicant began working for SR Enterprises for a wage after the first hearing;

    (f)SR Enterprises applied again for approval as a standard business sponsor some time after the first refusal on 28 January 2016. The department approved SR Enterprises’ second application standard business sponsor approval on 16 September 2016;

    (g)At the first hearing, the applicant’s first migration agent (and that of SR Enterprises) told the Tribunal that SR Enterprises made a fresh application to nominate the applicant for a 457 visa after SR Enterprises obtained standard business sponsor approval, which application was still pending at the time of the hearing. That appears not to have been the case. The department’s ICSE records reveal that SR Enterprises did not apply to nominate the applicant again until 14 December 2016; after the first hearing. So at the first hearing, a current nomination application was not pending; and

    (h)The department refused the 14 December 2016 nomination application on 8 February 2017.

    [3] The department’s records in ICSE do not appear to contain all the relevant information. The nomination application referred to in the letter the applicant produced does not appear in ICSE.

22. At the time of the second hearing on 19 July this year, the applicant (and SR Enterprises) did not know that SR Enterprises did not apply to nominate the applicant for a second time until 14 December last year, and they did not know that the application was refused on 14 December 2016. The Tribunal notified the applicant (and his second migration agent) of this apparent circumstance at the second hearing on 19 July. The applicant said that after the last hearing, his first migration agent ceased all contact with him. The migration agent would not answer his calls, would not return messages to return his call, and would not respond to his emails. As far as the applicant was concerned, his first migration agent disappeared, necessitating him appointing a new agent in May this year.

23. The Tribunal heard evidence from Mr Reddy during both hearings. Mr Reddy gave the following evidence:

    (a)He is the principal of SR Enterprises trading as United Panel Works. SR Enterprises operates a smash repairs business in Mildura;

    (b)SR Enterprises employs three panel beaters, two apprentice panel beaters, a general labourer in the panel shop, three spray painters, and three office and administration staff; 12 employees in total;

    (c)SR Enterprises has encountered substantial difficulty attracting qualified tradesmen (primarily panel beaters) to Mildura. Whenever it advertises for qualified tradesmen, most of the applicants are 457 visa-holders. SR Enterprises has a desperate and immediate need for qualified panel beaters;

    (d)The applicant has been working full time for SR Enterprises since July last year when the applicant and Mr Reddy were informed that the applicant could work under his bridging visa;

    (e)The applicant was a ‘very good panel beater’, and there was ‘a full-time job waiting for the applicant whenever he was able to fill it’;

    (f)SR Enterprises employs two other tradesmen on 457 visas;

    (g)SR Enterprises had applied to nominate the applicant twice. The first nomination application was refused because SR Enterprises was not an approved standard business sponsor. SR Enterprises has not heard anything yet about its second application to nominate the applicant. Mr Reddy has emailed SR Enterprises’ migration agent (the same one as the applicant’s first agent) several times about the application, and has spoken to the agent several times, but was not able to obtain a proper answer on the outcome of that application. Mr Reddy had also met with his local federal member of parliament about the application but was not able to obtain a clear answer;

    (h)He did not know that SR Enterprises had not applied to nominate the applicant for a second time until 14 December 2016. He thought the application had been made well before that. He did not know whether the application was supported by proper documents. Also, he did not know that the department refused that second application on 8 February 2017;

    (i)He is frustrated by the nomination process. SR Enterprises desperately needs a full-time panel beater. I has a suitable one already working for it in the applicant. But it is being hampered by not being able to sponsor the applicant successfully for a 457 visa; and

    (j)Now that SR Enterprises knows that its second nomination application has been refused, he will retain the applicant’s new migration agent, and apply again to nominate the applicant. He will ensure that all relevant documents are submitted with the application. 

24. After the second hearing, the applicant submitted written evidence to the Tribunal to the effect that:

    (a)On 24 July 2017, SR Enterprises’ new migration agent applied on its behalf to nominate the applicant for a 457 visa; and

    (b)The department approved that application on 18 August 2017.

25. It appears that the applicant’s first migration agent might have been less than frank with the Tribunal at the first hearing, and his communication with the applicant and SR Enterprises as his clients was muddied. The migration agent told the Tribunal at the first hearing that SR Enterprises had by then applied for a second time to nominate the applicant for a 457 visa but on the evidence before the Tribunal that appears to have been incorrect. SR Enterprises did not apply to nominate the applicant for a second time until 14 December 2016 (after the first hearing). The applicant and SR Enterprises did not know this. They thought one had been made earlier. The Tribunal cannot discount the possibility that the applicant’s first migration agent told it the truth at the first hearing – SR Enterprises had applied to nominate the applicant for a second time before that hearing – but there is no evidence before the Tribunal of such an application before the first hearing.

26. A 457 visa authorises the visa holder to stay in Australia temporarily. It does not create an expectation of a permanent stay. It enables a business to sponsor temporarily a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of skilled occupations.

27. SR Enterprises has now applied successfully to nominate the applicant for a 457 visa. The applicant wants effectively to remain in Australia now under the sponsorship of SR Enterprises until his visa expires on 6 May 2018 (assuming it is reinstated).

28. Accordingly, the applicant’s proposed continued stay in Australia is consistent with the purpose for which he first travelled to Australia. He came to Australia to work as a panel beater until at least 6 May 2018 when his 457 visa was to expire. That purpose now remains intact. If the Tribunal sets aside the cancellation decision, the applicant can work as a panel beater until at least 6 May 2016. That stands to the applicant favour.

29. Two other characteristics of this review assist the applicant.

30. First, on the evidence before the Tribunal, the applicant was able to secure an offer of employment as a panel beater with SR Enterprises well within 90 days of ceasing work with Ocean Shores. He ceased work with Ocean Shores in August 2015, and in September 2015 he completed a trial period with SR Enterprises and signed a contract of employment to work for that company as a panel beater. That the applicant was able to locate alternative employment within 90 days of losing his job with Ocean Shores assists him in this review.

1. Second, the applicant is now working as a panel beater with SR Enterprises under a bridging visa E with work rights, and is paying income tax in Australia. He proposes to continue in that role. Mr Reddy has stated that the applicant is a competent panel beater who is filling a desperate need SR Enterprises has, and who SR Enterprises will continue to employ full time. That assists him in this review as well.

2. The Tribunal gives this consideration significant weight in the applicant’s favour.

   The circumstances in which the ground for cancellation arose

3. The applicant commenced working for Ocean Shores as a panel beater in May 2014. He ceased work for that company in August 2015. The applicant said that he did not leave Ocean Shores voluntarily. It terminated his employment because of a downturn in its business.

4. The applicant did not tender any written evidence supporting his claim that Ocean Shores’ business deteriorated after May 2014 such that it could not afford to continue with his employment. The applicant could have brought forward some evidence of this such as a termination letter or some statement from Ocean Shores explaining the applicant’s departure.

5. For that reason, the Tribunal does not make any finding about whether Ocean Shores was struggling financially by August 2015 or whether it had the capacity to keep the applicant. Further, the Tribunal does not make any finding about whether it terminated the applicant for lack of financial means.

6. Such findings would reflect perhaps adversely on Ocean Shores. The Tribunal is not prepared to just accept the applicant’s uncorroborated evidence about Ocean Shores’ financial capacity and its treatment of him in the absence of written evidence supporting his allegations, or hearing from Ocean Shores. 

7. Considering all the evidence before it, the Tribunal is prepared to accept only that the applicant did not leave Ocean Shores employ voluntarily. The applicant plainly did not want his visa imperilled and would not have left Ocean Shores lightly. Further, on the evidence of Mr Reddy, the applicant is a diligent and competent panel beater who is in demand given the apparent shortage of people in that trade willing to work in a regional area. That evidence weighs against a finding that Ocean Shores terminated the applicant say for lack of application or competence.

8. In all the circumstances, this consideration weighs slightly in the applicant’s favour.

   Extent of compliance with visa conditions and co-operation with the department

9. As set out in paragraph 13 above, the applicant has breached condition 8107(3)(b) of his visa by ceasing working with Ocean Shores. On his evidence, he compounded that breach by commencing work with SR Enterprises for a month-long ‘test period’ shortly after ceasing with Ocean Shores in circumstances where SR Enterprises was not his approved sponsor and in the absence of some other authority to work for the company under his 457 visa. The applicant said that he thought he could just commence work with SR Enterprises without that constituting a breach of his 457 visa. He said that the conditions of his visa were never explained to him. The Tribunal does not accept that excuse for a visa condition breach. The applicant had a duty to inform himself of the conditions of his visa. It is not enough for him to say he did not know them and blame others for that lack of knowledge. That matter stands against the applicant.

10. There is no evidence before the Tribunal that the applicant has not co-operated with the department. That stands to his favour.

    Hardship caused by the cancellation to the applicant and his family

11. The applicant pointed only to one instance of hardship if his visa remained cancelled and he was required to return to the Philippines. He said he would not be able to support his family in the Philippines if he was required to return there.

12. The Tribunal accepts the applicant will suffer some financial hardship if he is required to return to the Philippines. Much of his working life has been spent working outside the Philippines to support his family. However, the Tribunal does not give this consideration much weight. The applicant is a qualified automotive tradesman whose skills are in demand in the Philippines as they are in Australia. He will find work in the Philippines relatively quickly, and although he will earn less there than he does in Australia, he will be able to support himself and his family. The hardship question is one of degree only. He will be able to support his family more comfortably from Australia than from the Philippines.

13. The Tribunal gives this consideration some weight in the applicant’s favour but that weight is limited.

    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

14. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

15. 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 s. 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. The Tribunal has taken that potential limitation on the applicant’s future applications from 18 February 2016 into account.

    Whether there are others whose visas would or may be cancelled under s. 140

16. This consideration does not apply. There are no secondary visa holders whose authority to remain in Australia were affected by the cancellation decision.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

17. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

18. Before the hearings, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant returned to the Philippines. The applicant did not say anything at the hearings, and did not submit any written evidence, that would change that position.

    Conclusion

19. In the end, the Tribunal considers this review to reduce to balancing the applicant’s continued stay in Australia being consistent with the purpose of his original travel here against his breach of the conditions of his 457 visa. The applicant was able to secure alternative employment with SR Enterprises within 90 days of his visa being cancelled. SR Enterprises has now successfully nominated the applicant for a 457 visa. The purpose of the applicant’s travel and stay in Australia remains entirely intact. Balanced against that, the applicant technically breached a condition of his 457 visa by working for SR Enterprises for the month-long ‘test period’, at which time SR Enterprises was not his nominated employer. But the applicant ceased working for SR Enterprises when Mr Reddy told him effectively to cease working pending SR Enterprises nominating the applicant formally.

20. The Tribunal considers the purpose of the applicant’s travel and stay in Australia remaining intact to outweigh the 457 visa condition breach. The Tribunal weighs the purpose consideration heavily in the applicant’s favour. Further, the applicant remaining in Australia to continue working for SR Enterprises fills the need a regional Australian employer has for a skilled tradesman. Against that, the 457 visa condition breach was relatively minor. And it occurred in the process of the applicant seeking a fresh nominating employer. Acting properly, that is what an employee on a 457 visa should do on losing his nominated employer.

21. Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours setting aside the decision to cancel the applicant’s 457 visa and substituting a decision not to cancel the visa.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 457 (temporary work (skilled)) visa.

    L. Hawas
    Senior Member