Beranayarayara (Migration)

[2019] AATA 5590

Beranayarayara (Migration) [2019] AATA 5590 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mosese Beranayarayara

CASE NUMBER:  1912828

HOME AFFAIRS REFERENCE(S):          BCC2019/22841

MEMBER:Mr S Norman

DATE:9 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

Statement made on 09 December 2019 at 11:05am

CATCHWORDS

MIGRATION – cancellation – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – genuine intention to stay temporarily for purpose of visa – cessation of employment with sponsor employer – discretion to cancel visa – factors for and against cancellation – wife’s medical treatment in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g),

Migration Regulations 1994 (Cth), rr 2.43(1)(ia), (1A), Schedule 2, cl 408.213, Schedule 8, condition 8107

CASE

COT15 v MIBP (No 1) [2015] FCAFC 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 408 (Temporary Activity) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act – ‘prescribed ground for cancelling a visa applies’. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife (Mrs Vilimaina TABUASUKA); and Pastor Livai LEONE. The Tribunal was assisted by an interpreter at hearing.

4. 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

5. 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)(g) of the Act. 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?

6. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(ia) is relevant.

7. On 30 October 2017, the applicant (a citizen of Fiji) lodged an application for a visa. On 5 February 2018, the applicant was granted a Temporary Activity (class GG) Temporary Activity (subclass 408) visa. The applicant had lodged the visa application with the Department based on employment with an approved sponsor (Australian Indigenous Ministries Inc). At the time the visa was granted, the applicant was required to satisfy the following:

   408.213

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  if the applicant has held a substantive visa—whether the applicant has complied substantially with the conditions to which the last  substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and

   (c)  any other relevant matter.

8. On 29 September 2018, the Australian Indigenous Ministries Inc notified the Department the applicant had ceased employment with the sponsor (at hearing the applicant said he ceased work with the sponsor around the end of August 2018). As the applicant had ceased employment with his sponsor, it therefore appeared that he no longer had a genuine intention to stay temporarily in Australia to carry out the work in relation to which his visa was granted.

9. On 2 April 2019, the applicant was issued a Notification of Intention to Consider Cancellation (NOICC) of his visa for the reasons set out therein. Apart from that which is set out above, these included:

   Regulation 2,43

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   (ia) in the case of the holder of: …

   (ie) a Subclass 408 (Temporary Activity) visa;

   That the grounds in subregulation (1A) are met

10. Subregulation (1A) states:

    (1A) For paragraph (1)(ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of the 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:

    (a) the visa holder’s visa was granted

11. The applicant was invited to comment and he provided a response on inter alia 1 May 2019.[1] But in the response, he did not dispute there were grounds to consider cancellation.

    [1] PDF – from p.45 (‘PDF’ refers to the Department file on the Tribunal CASEMATE database). 

12. When discussed at hearing, the applicant also did not dispute that grounds existed to consider cancellation of his visa.

13. That being said, based on the information before the Tribunal, I am satisfied there are grounds to cancel the applicant’s visa under s.116(1)(g) of the Act (prescribed ground); and r.2.43(1)(ia) & s(1A)(a) of the Regulations. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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’.

15. Regarding the purpose of the applicant’s travel to Australia, in his response to the NOICC he explained it was not his decision, but the decision of Australian Indigenous Ministries Inc (AIM) for him to leave the position on Palm Island (the position was intended to establish home visitations for persons on Palm Island).  He also said he did not receive any wages during the months he was employed on Palm Island (at hearing he explained his positon was ‘voluntary’ but it was also stated he was to be paid the amount of AUD$14,000 per annum for his expenses – and he said he had not received any money).

16. In their decision, the delegate said there was no evidence to indicate the applicant’s initial intention for travelling to staying in Australia was not for the purpose for which his visa was granted. However, the delegate was not satisfied the applicant’s present intention for residing in Australia, was for the purposes for which the Subclass 408 visa was granted.

17. At hearing, the Tribunal put to the applicant that subject to his comments, the following information would be the reason, or part of the reason for affirming the decision under review. The information was that by the applicant’s letter of 6 March 2019,[2] he requested the Department to consider him for a permanent visa. The Tribunal then said that this may indicate that he no longer intended to remain in Australia temporarily, which was in breach of his visa condition. When discussed, the applicant agreed this was and is still correct.

    [2] PDF – p.8.

18. After then considering all the evidence, the Tribunal is not satisfied the applicant presently intends to reside in Australia for the purpose for which his Subclass 408 visa was granted.

19. Regarding the extent of non-compliance with visa conditions, the applicant advised that after he ceased work with his sponsor he had undertaken work as a security officer[3] as he needed to pay his wife’s ongoing medical expenses. The Tribunal is satisfied this is evidence the applicant had not complied with condition 8107 of the visa. However, and as did the delegate, the Tribunal has not considered cancellation under this ground.

    [3] See Tribunal – folio 40 (reverse side).

20. Regarding the degree of hardship that may be caused to the applicant or his family if his visa was cancelled, as noted herein the applicant said his wife needs to remain in Australia so that she can receive ongoing medical care for a heart condition. It was claimed the wife would face enormous health risks if she travelled. Medical information lodged with the Department indicated the applicant’s wife suffered a myocardial infarction December 2017 in Fiji. However, this had occurred some six months prior to the wife arriving in Australia. This was also said to be the source of the wife’s present medical condition.

21. The delegate noted that Department health checks undertaken prior to the grant of the Subclass 408 visa, indicated the wife was cleared to travel to Australia. Further, that there was no evidence in the medical reports the wife would be unfit to return to Fiji.

22. The applicant said that the heart condition his wife has, requires medical supervision which she could not receive in Fiji. It was also said that travel to Fiji would have a detrimental effect on her health. In his letter of 6 March 2019,[4] the applicant also said that a doctor had advised him his wife should ‘refrain from travelling long distance and [at] high altitude as well which may trigger heart attack again’.

    [4] PDF – p.47.

23. Evidence from the Townsville Hospital dated 6 March 2019,[5] indicated the applicant’s wife (Vilimaina):  

    was a patient at the Joyce Palmer Health service [on Palm Island] from May-August 2018. Her diagnosis is Congestive Cardiac Failure secondary to a Myocardial Infarction experienced in December 2017 while in Fiji. Over the months while Vilimaina was managed at Joyce Palmer Health service her medication was optimised and further tests (including Echocardiogram) was arranged. While in Townsville for further tests she experienced chest pain and was sent to the Townsville Hospital for further investigation. Investigations there including angiogram revealed severe triple vessel disease for which cardiothoracic surgery, CABG, was recommended (Coronary Artery Bypass Grafting). This was discussed with the patient and l understand the Townsville Hospital has been trying to contact Vilimaina since to go ahead with the procedure. Vilimaina and her husband left Palm Island approximately August 2018 and I understand they now reside in the Cairns region undertaking paid work there.

    [5] PDF – p.21.

24. When discussed at hearing, the applicant said that though the Townsville Hospital has his telephone number, he had not been contacted by them. The applicant had also explained that:  

    ·     he and his wife travelled to Australia (Palm Island) on 1 May 2018

    ·     In July 2018, his wife had been admitted to Townsville Hospital for three days  (the applicant had travelled with his wife), and then they returned to Palm Island (the applicant said the cost of this admission was AUD 12,000)

    ·     Approximately two weeks later, the wife travelled alone to Townsville Hospital and was admitted for one day. She then returned to Palm Island

    ·     In August 2018, the wife was treated at the hospital on Palm Island and she was given prescription medication

    ·     In August/September 2018, after ceasing work with AIM, the applicant and his wife travelled to Townsville, then subsequently to nearby Cairns

    ·     In February 2019, the wife was admitted to a hospital near Cairns for three days

    ·     Since that time, the wife’s condition had been treated with prescription medication (though surgery had been discussed, no further advice about this was received by the applicant)

25. At hearing, the Tribunal put to the applicant it understood the health services available in Fiji, may be adequate. For instance, the country information stated:

    2.24 Fiji’s life expectancy at birth is comparatively high at just over 70 years, reflecting higher than regional average health outcomes. The government provides generous public health services, including free primary and secondary health care. However, x-ray and other support services are not generally subsidised.[6]

    [6] DFAT COUNTRY INFORMATION REPORT, FIJI, 27 September 2017

26. However, the applicant did not believe his wife could be adequately treated for her health condition in Fiji. He believed his wife’s health could be more effectively treated if they remained in Australia as permanent residents. The Tribunal accepts that health services in Australia may be better than those generally available in Fiji.

27. Be that as it may, the Tribunal has no advice as to how long it may take for the applicant’s wife’s condition to be stabilised, neither did the applicant know if his wife may be offered any surgery (though the Tribunal understands this was hoped for), and he was still working in Australia (not for AIM but as a security guard) in an effort to pay for his wife’s ongoing medical expenses (which since February 2019 have been treated by prescription medications only).

28. The Tribunal accepts the applicant and his wife may be advantaged if they are allowed to remain in Australia. I accept that a return to Fiji, may give rise to hardship for them (if the wife was unable to access the more sophisticated medical treatment available to her in Australia).

29. For the purposes of considering what constitutes a compelling need to travel to and reside in Australia, the Tribunal is not aware of any material definition for ‘compelling’.  Be that as it may, the Oxford Dictionary indicates that ‘compelling’ may include something that ‘rouses strong interest’.  The Tribunal will accept the applicant’s wife’s health may be something that rouses strong interest, particularly to members of her family.

30. Next, the (now 61 year old) applicant also said that he had worked in Ministries in Fiji for approximately 18 years. He feared that should he return to Fiji, he may not be able to return to Ministry work in Fiji. He said that was because he may be perceived to be too old; though the Tribunal understands that alternate work commensurate with his skills may still be available; and as stated at hearing, the Subclass 408 visa was only ever intended to be a temporary visa, so that return to Fiji would have been anticipated by the applicants.

31. Pastor Leone said the applicant had left his Ministry work in Fiji, and his reputation would now be ‘tarnished’ on return. When asked why, the Pastor said because the applicant was mistreated (though the applicant said the mistreatment was by AIM in Australia); and due to him having left the Ministry in Fiji. However, and as noted above, the Tribunal said the applicant was only granted a visa to travel to and reside in Australia temporarily (for two years - something conceded by the applicant at hearing), and that it was always expected the applicant and his wife would return to Fiji. In the circumstances, the Tribunal does not accept the applicant’s reputation would be ‘tarnished’, as feared by the Pastor.

32. Be that as it may, the Tribunal will accept the applicant and (particularly) his wife may suffer some hardship (financial, psychological, emotional or other) if his visa is cancelled.

33. Regarding the circumstances in which the ground for cancellation arose, the applicant said (in writing) that his employer (AIM) forced him to leave work due to unsubstantiated claims made by his church in Fiji.[7] The delegate accepted the cessation of the applicants employment, may have been beyond his control. However, the delegate was not satisfied it was necessarily unusual or exceptional for an employee to lose their employment. It remained that the grounds for cancellation arose when the applicant ceased employment with his sponsor. Department records also indicated the applicant had not departed Australia since ceasing his employment and that he had remained onshore since his arrival on 1 May 2018.

    [7] PDF – p.49.

34. At hearing, the applicant said he remained with AIM between around 1 May 2018 and until the end of August 2018. He said he signed a Memorandum of Understanding prior to travelling to Australia; and that he was to be employed for approximately two years and he was to be paid an amount of $14,000 per annum. However, after approximately four months, his employment had been terminated (without the applicant being paid). When pressed repeatedly, the applicant said he did not know why his employment was terminated (and the Tribunal therefore rejects the claim there were unsubstantiated claims made by his church in Fiji, as false). However, his employer with AIM (the ex-President), said he should seek to validate his visa in Australia; which he explained to mean that he (the applicant) wanted to be a permanent resident.

35. At hearing, the applicant said the Tribunal could telephone his former employer, and ask them to advise why the applicant’s employment was terminated. However, the Tribunal declined this last minute offer, due to the fact (in part) that the named person had not been notified, and given there was no dispute the applicant had ceased employment with AIM.

36. That being said, the Tribunal will accept the applicant’s employment with AIM was terminated for unknown reasons.

37. Regarding past and present behaviour, there is no information before the Department or the Tribunal that the applicant had been uncooperative.

38. Regarding any consequential cancellations, the applicant has no children in Australia (three children remain in Fiji). However, and as discussed at hearing, the applicant’s wife is in Australia and her visa would be cancelled automatically, should the applicant’s visa be cancelled.

39. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

40. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

41. Regarding whether any international obligations would or may be breached if the applicant’s visa is cancelled, at hearing he said he feared he may not be able to return to Ministry work in Fiji, as he could be perceived as being too old. When then asked to explain, he said due to the ‘situation’, the ‘hardship’, ‘life’ and ‘the government’ in Fiji. He said the government opposed the Methodist Church in Fiji (in which he was a Minister). He also conceded the Methodist Church was still the major church in Fiji. The Pastor at hearing, also said the applicant’s reputation was tarnished. That was because the applicant had ‘left the Ministry’ in Fiji. At hearing, the applicant’s wife had referred to the ‘difficulties’ on return to Fiji (though she agreed this related to her health and work opportunities for her husband).

42. The Tribunal has addressed some of the concerns above. However, and though perhaps uncertain, the applicant’s evidence could warrant a consideration of whether any protection claims arise. However, the Full Federal Court has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could also be canvassed in an application for a Protection visa (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015). The Tribunal understands each case needs to be considered according to its merits, however in the present case, I am satisfied that any protection claims could be canvassed in an alternate visa process, assuming the applicant wished to do so.  

1. In summary, the Tribunal is satisfied it is unclear why the applicant’s employment was terminated, however, that he had none-the-less breached the criteria attached to his Subclass 408 visa and that his initial purpose for travelling to and residing in Australia had now ceased. The Tribunal also accepts the applicant’s wife’s medical condition may benefit by the more sophisticated medical treatment available to her in Australia. However, the Tribunal has no evidence that any medical treatment available to citizens of Fiji would be withheld from the wife, for any reason, should she return. The Tribunal has no evidence of the cost of providing the relevant medical treatment to the wife in Australia, or the detriment this might have on Australian citizens and or permanent residents. The Tribunal also has no evidence the applicant could not obtain work commensurate with his skills in Fiji. That being said, and after considering the accepted evidence as a whole, the Tribunal is satisfied that in this case the applicant’s visa should be cancelled.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

   Mr S Norman
   Member