Ascone (Migration)

Ascone (Migration) [2018] AATA 5455 (19 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Salvatore Ascone
CASE NUMBER:  1711771
HOME AFFAIRS REFERENCE(S):           BCC2017/908987
MEMBER:Antonio Dronjic
DATE:19 November 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 19 November 2018 at 4:29pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – workplace injury at sponsoring business – failure to commence employment with a new business sponsor – started own tilling business – purpose of a Subclass 457 visa – degree of hardship – circumstances not sufficient for referral – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 May 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).
The delegate cancelled the visa under s.116 (b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant applied to the Tribunal on 2 June 2017 for review of the visa cancellation and with his application enclosed a copy of the primary decision record.
The decision record of 31 May 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:
·On 21 May 2016, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 21 May 2020;
·The standard business sponsor who most recently nominated the applicant to work as a Building Associate was Winslow Constructors Pty Ltd;
·On 3 October 2016, the sponsoring business informed the Department that the applicant ceased his employment at the company on 9 September 2017.
·A notice of intention to consider cancellation (‘NOICC’) was issued on 5 May 2017 and the applicant did not respond to the Notice; and
·On 31 May 2017, the delegate proceeded to cancel the applicant’s visa.
On 25 September 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 7 November 2018.
The applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The Tribunal informed the applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.
The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is 28 years of age national of Italy. He married an Australian citizen on 15 September 2018. Prior to arriving in Australia in March 2015 as a holder of a working holiday visa, he worked at his father’s excavation business in Italy for approximately 10 years. He has completed an equivalent of year 12. In Italy, he owns a property and has savings of approximately 40,000 euros. His two brothers, sister and parents live in Italy. The applicant’s first cousin and uncle live in Australia.
He gave evidence that he commenced employment as an excavators’ driver at Winslow Constructors Pty Ltd on 12 May 2015. He continued to do the same job even after his Subclass 457 visa was granted on 21 May 2016 based on the sponsorship and nomination made by the same business. He confirmed that his nominated occupation was a building associate but insisted in his evidence that he worked as excavators’ driver.
He gave evidence that he ceased employment at Winslow Constructors Pty Ltd on 8 August 2016 as a result of a work related accident. He suffered a work related injury and was admitted to the hospital on the same day. He submitted a copy of the letter from the Sunshine Hospital emergency department dated 8 August 2016 as evidence that he suffered fracture of unspecified body region after falling of an excavator. He was discharged from the hospital on the same day with analgesia. The applicant claims that he was advised to stay in bed for 15 days. He then consulted his own GP who advised him to say home for another three to four months. He never submitted a work cover claim because his boss (Steve) promised that he will pay him.
The applicant stated in his evidence that he did not receive the Department’s notice of intention to consider cancellation (‘NOICC’) of 5 May 2017. He stated that he changed his residential address and that he is not certain if he informed the Department of change of address.
He confirmed that he received Department’s Notification of cancellation letter with the decision record on 31 May 2017 by e-mail. The applicant confirmed that his e-mail address is the same as stated on the Department’s Notification of cancellation letter.
He never returned to work at Winslow Constructors Pty Ltd. In November or December 2017, he commenced employment at his cousin’s company Gentile Tilling Group. He continued to work at this business as a manager for a period of three or four months.
On 31 January 2018, the applicant registered his own company Ascone Tilling Pty Ltd. He is the sole director and sole shareholder of this company. He gave evidence that he works as a manager and engages subcontractors to do the tilling work.
He stated in his evidence that no other Australian business sponsored and nominated him for a position within the business. He continues to work at his own company till the present day.
I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition 8107 that was imposed on his subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I invited the applicant to state if there any matters he wants me to take into account in considering whether the visa should be cancelled.
The applicant stated that he was forced to open his own business because of what happened to him at Winslow Constructors Pty Ltd. He further stated that on 6 November 2018, he lodged an onshore application for a partner visa based on his marriage to an Australian citizen.
Considering that the applicant’s representative was recently appointed, I granted him additional seven days to provide submissions and documentary evidence in support of the review application.
On 14 November 2018, the applicant’s representative submitted a large number of documents (Tribunal folios 51-193) including:
·Legal submissions stating inter alia that the Applicant was injured at his workplace and was advised to not lodge a work cover claim and was told that the company would pay him; that the Applicant was unable to return to work as he could not stand up for long periods of time for a period of approximately three to four months; that he never received any notice that his employment has been formally terminated by his sponsor; that this caused the applicant to suffer from depression; that the applicant consequently incorporated his own tiling company which he manages and in which he employs contracts to do the labour; that he applied for a partner visa on the basis of his marriage to Angela Ascone on 15 September 2018; that the applicant has now lived in Australia since 2015; that the applicant and his wife cannot readily relocate to Italy as they have a joint mortgage over the matrimonial home; that the applicant and his wife are closely connected to their family, and particularly the wife’s parents who they see on a daily basis; that the applicant needs to be in Australia to lodge his work cover claim and obtain back pay, reimbursement of medical expenses and to ultimately undergo surgery; that the return of the applicant to Italy would put severe strain on the applicant and his wife’s relationship and make his situation worse, including his depression; that the applicant contributes to the economy by engaging contractors and paying tax and is not a burden on the Government; and if the Tribunal is not willing to reinstate his visa, it should refer the matter to the Minister for exercise of his discretion. It was further submitted that the applicant’s employer has breached a number of international conventions that have been ratified by Australia an incorporated into Australian law. This includes the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Persons with Disabilities;
·Applicant’s statutory declaration declared on 14 November 2017;
·Statutory Declaration of Angela Ascone, the applicant’s spouse dated 14 November 2018 in which she claims that she will suffer hardship if the applicant is not allowed to remain in Australia;
·A copy article concerning unrelated work cover matter;
·A copy article from Holding Redlich Lawyers titled ‘the real cost of workplace bullying’;
·Article published in the Daily Telegraph on 31 December 2015;
·TAC Certificate as evidence that the applicant had no capacity for employment from 6 September 2016 to 14 September 2016;
·A copy of the applicant’s employment contract with Winslow Constructors Pty Ltd dated 12 May 2015;
·A copy of the medical report from 8 August 2016;
·Copies of applicant’s receipts for payment for medical consultation;
·Bundle of the applicant’s bank statements;
·Applicant’s wedding photographs;
·A bundle of invoices rendered to the applicant by subcontractors;
·A copy of Certificate of Business Registration for the applicant’s business;
·Evidence of loan mortgage;
·A copy of the applicant’s marriage certificate;
·A copy e-mail from the Department dated 6 April 2017;
·Articles from a law firm about a compensation case involving Winslow where there was sexual harassment and bullying demonstrating a culture of such behaviour
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
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?
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. The condition 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 21 May 2016 and which, but for its cancellation, was valid to 21 May 2020.
Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with the sponsoring business on 8 August 2016 and that the Department received notification from the applicant’s employer that he ceased his employment on 3 October 2016. I further find that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107(3)(b).
For these reasons, I am 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
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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, 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 are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Winslow Constructors Pty Ltd as a Building Associate on a temporary basis. The applicant was unfortunate to lose his job in September 2016. He decided to remain in Australia. Based on the medical evidence provided by the applicant I am satisfied that, because of the work related injury, he was unable to work for a period of 3-4 months from 8 August 2016.
In November or December 2017, he commenced employment at his cousin’s company Gentile Tilling Group. He continued to work at this business as a manager for a period of three or four months. Instead of finding employment in his nominated occupation with another Australian business willing to sponsor and nominate the applicant, on 31 January 2018, he registered his own company Ascone Tilling Pty Ltd. He is the sole director and the sole shareholder of this company. He gave evidence that he works as a manager and engages subcontractors to do the tilling work.
Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.
As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor 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 occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor in September 2016. I give significant weight to this consideration.
The reason for and extent of the breach
The ground for cancellation arose when the applicant ceased working with his sponsoring employer in September 2016. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.
I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than two years since the original cessation of employment represents a significant breach of condition 8107.
Circumstances in which ground of cancellation arose
The applicant ceased his employment at the sponsoring business in September 2016. The Department did not proceed with the visa cancellation until 31 May 2017. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure the employment in Australia with an alternative business sponsor.
Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.
Past and present conduct of the visa holder towards the department
There is no other evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.
Degree of hardship that may be caused; whether there would be consequential cancellations under s.140
The applicant claims that the visa cancellation would cause hardship to himself, his wife and their respective families. It was submitted that the applicant and his wife cannot readily relocate to Italy as they have a joint mortgage over the matrimonial home.
I accept that the applicant has been living in Australia since 2015 and is married to an Australian citizen. I accept that the applicant established ties to the Australian community and set up his own tilling business in January 2018. I do not accept that the applicant will be unable to re-locate to Italy because he and his wife have a mortgage in Australia. They can either sell the property or use a significant saving the applicant claims to have in Italy to make regular mortgage payments.
I do not accept that the applicant needs to be in Australia to lodge his work cover claim and obtain back pay and reimbursement of medical expenses related to his work related injury. There is nothing to prevent the applicant to pursue this claim through his lawyers from overseas.

I do not accept that the applicant’s wife will suffer emotional and mental trauma if the applicant’s visa remains cancelled. The applicant gave evidence at the hearing that on 6 November 2018, he lodged an on shore application for a spouse visa and was granted a bridging visa E on the basis of a spouse visa application.
I accept that the applicant contributes to the economy by operating his own business, engaging contractors and paying tax. However, this is not the purpose for which a Subclass 457 visa was designed.
Based on the evidence before me, I am not satisfied that the applicant’s employer breached any international conventions. This claim was not supported by any independent evidence and it is jet to be determined whether the applicant’s former employer breached any of Australian or international work-related laws.
Considering his family composition and his work experience gained in Italy and Australia, I do not accept the applicant’s claim that he will not be able to re-establish himself in Italy. He gave evidence that he owns a property in Italy and has substantial savings.
Balanced against any potential hardship to the applicant and his wife that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.
In any event, the applicant is not prevented from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant. I am satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
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
The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal is mindful that 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 section 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.
Whether there would be consequential cancellations under s.140
There are no consequential visa cancellations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
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).
Based on the evidence before me, I am not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
Request for the Tribunal’s referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
Based on evidence before me, I am not satisfied that this case exhibits unique or exceptional circumstances and that the circumstances exist where exceptional economic and cultural benefit to Australia would result from the visa applicants being permitted to remain in Australia.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and decided not to refer the matter to the Minister.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antonio Dronjic
Member

[2018] AATA 5455

19 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice