Cajegas (Migration)

[2021] AATA 2485

Cajegas (Migration) [2021] AATA 2485 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Linolito Cajegas
Mrs Jennylyn Cajegas
Mr Lowell Jay Cajegas
Miss Hannah Mae Cajegas
Miss Jennielle Ann Cajegas
Miss Abigail Gabrielle Cajegas

CASE NUMBER:  2101305

HOME AFFAIRS REFERENCE(S):          BCC2020/1425221

MEMBER:Vanessa Plain

DATE:29 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 408 (Temporary Activity) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 June 2021 at 2:23pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) –ceased employment – sponsor terminated employment and withdrew support – conflicting and uncorroborated allegations and Fair Work claims given no weight – discretion to cancel visa – visa has expired in any case – applicant currently volunteering for another employer which intends to sponsor and employ – members of family unit – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348, 359A

Migration Regulations 1995 (Cth), Schedule 8, condition 8107(1)(a)

CASES

Rani v MIMA (1997) 80 FCR 379

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 408 (Temporary Activity) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(1)(a) on the basis that the applicant ceased to be employed by the employer in relation to which the visa was granted. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second to sixth named applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second to sixth named applicants.

4. The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Worsfold.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa.

9. The Delegate’s decision record contends that the applicant has not complied with subclause (1)(a) of condition 8107 attached to their subclass 408 (Temporary Activity) visa, which states:

   “8107

   (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

   (a)Cease to be employed by the employer in relation to which the visa was granted; or

10. The delegate’s decision record of 4 January 2021 provides as follows:

    “On 15 March 2019, the visa holder was granted a Temporary Activity (subclass 408) visa to undertake a nominated position as Church Worship Leader / Music Director at the Christian Community Church Morwell. Condition 8107 was applied to his visa.
    On 7 April 2020, the Christian Community Church Morwell (CCCM) notified this Department that the visa holder’s employment with them formally ceased on 28 March 2020.  The CCCM also advised that although employment had ceased on 28 March 2020, ongoing remuneration and accommodation were offered to the visa holder for the five weeks following cessation of his employment, which ended on 2 May 2020.

    On 23 April 2020 the visa holder’s Migration Agent Lauri Stewart, wrote to the Department advising that the visa holder’s sponsor had not met their employment obligations and as such the visa holder was intending to lodge a complaint with Fair Work Australia. Ms Stewart stated that the visa holder did not consider his employment to have ceased as he had not been formally notified of termination by his sponsor. Ms Stewart provided a bank statement citing a financial allowance paid
    into the visa holder’s account on 3 April 2020, as evidence of his ongoing employment.

    While I have considered the information provided by the visa holder’s Migration Agent on 23 April 2020, I consider too the information provided by the Christian Community Church Morwell, which confirmed the termination of the visa holder’s employment and stated that as of 2 May 2020, all support, including remuneration and accommodation, had ceased.

    Based on this information, it appears the sponsor has: withdrawn their support; the visa holder is no longer employed with the Christian Community Church Morwell; and he has not received any form of remuneration from them since 2 May 2020.”

11. Based on this information, it appeared that the applicant had not complied with subclause (1)(a) of condition 8107 attached to his visa because it appeared that his employment with the Church in Morwell had ceased. As such, there appeared to be grounds for cancelling the applicant’s Temporary Activity (subclass 408) visa under s116(1)(b) of the Act because it appeared that he had not complied with a condition of the visa.

12. A Notice of Intention to Consider Cancellation dated 10 July 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant responded in writing to the NOICC on 17 July 2020, 24 July 2020 and 27 August 2020 respectively.  The applicant did not agree that there were grounds for cancellation of his visa for the following reasons:

    1.    Condition 8107(1)(a) cannot be found to have been breached because the applicant has not ceased his employment with Christian Community Church Morwell (CCCM); and

    2.    Condition 8107(1)(a) cannot be found to have been breached because Christian Community Church Morwell cannot claim before the Department that the applicant has ceased to be employed, at the same time as they are arguing before the Fair Work Commission that the applicant was never employed.  

13. On 8 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 24 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case.  The Tribunal has read and considered the documents submitted by the applicant. 

14. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)NOICC responses

    (c)Statutory Declaration for NOICC responses

    (d)Statement of the applicant

    (e)Digital court book for the applicant’s case in the Fair Work Commission

    (f)Employer Response to unfair dismissal application (file 102061)

    (g)Flight centre search results for June and July 2021

    (h)Signed witness statement of Johannes Bergman, former CCCM member

    (i)Signed witness statement of Bruce Parnell, former CCCM member

    (j)Signed witness statement of Michael Cole, former CCCM member

    (k)Signed witness statement of Barrie Cook, former CCCM member

    (l)Signed witness statement of Christina Devaney, CCCM member

    (m)Further signed witness statement of Bruce Parnell, former CCCM member

    (n)Signed witness statement of Laurence Hunter, former CCCM member

    (o)Signed witness statement of Nenita Kofoed, former CCCM member

    (p)Witness statement of Agnes Mansfield (in email form), former CCCM member

    (q)Signed witness statement of Colin McMahon, former CCCM member

    (r)Signed witness statement of N Noorbergen, former CCCM member

    (s)Signed witness statement of Elein Parnell, former CCCM member

    (t)Signed witness statement of Toni Randell, former CCCM member

    (u)Signed witness statement of Michael Cole, former CCCM member

    (v)Signed witness statement of Jennifier Creati, former CCCM member

    (w)Signed witness statement of Dr Wesley Luke Worsfold of West City Church in Brisbane

    (x)West City Church job advertisements

    (y)Letter of offer from West City Church dated 5 February 2021

    (z)Statement of the applicant dated 15 February 2021 addressed to the West City Church

    (a)Legal submissions dated 23 June 2021 

15. The Tribunal received adverse information concerning the applicant from Mr Peter Harvey, Pastor at CCCM dated 15 March 2021 and 16 June 2021.  Mr Harvey sent further letters to the department prior to the applicant’s application before the Tribunal.  Pursuant to the Tribunal’s obligations under s 359A of the Act, the nature of the adverse information was put to the applicant by the Tribunal by way of letter.  The applicant was invited to comment or respond to the adverse information and the applicant’s responses are contained in the applicant’s legal submissions filed 23 June 2021.  

16. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(1)(a).

17. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. At the hearing, the applicant gave the following candid evidence:   

    ·He thought that he was employed by CCCM.  He was hired as a music director and he was given a written contract by the church.  He initially came to Australia for 3 weeks and the Church elders agreed he’d be perfect for the job.  He signed a contract.

    ·He job was cut off by Mr Harvey half way through his two year contract.  Mr Harvey, the Pastor at the Church, accused the applicant of many things which the applicant did not do.  He claimed that he only received half the money that Mr Harvey agreed to before the contract was signed.  Particularly, he received on $250.00 allowance for his family of 6, when he was expecting to receive $500.00 per week in allowance. 

    ·He asked Mr Harvey for help financially and from other members of the church.  Prior to the lockdown, members were asking about the financial statements of the church.  They were asking where the money was going.  The applicant’s group in the Church wanted to see the financial statements, Mr Harvey refused and sacked the applicant and the group seeking the financial documents left the church entirely.   

    ·He made an application in the Fair Work Commission for unfair dismissal.  The Church filed a response in which they claimed the applicant wasn’t an employee.  The applicant didn’t continue with the application.    

    ·He and his family left the church in May 2020.  Mr Harvey said to the applicant that he would be cutting off the electricity.  Another congregant offered to help house the applicant and his family at the time.

    ·He continued to help the congregation with church services while staying at the congregant’s house who was affiliated with the Church at the time. 

    ·He is volunteering at the City West Church in Brisbane at the moment.  If is cancellation is set aside, he is able to commence new employment with this church. 

    ·Being accused of serious wrong-doing by Mr Harvey was incredibly stressful and the applicant was hospitalised for a while.  He never expected to receive such extraordinary support from his fellow church members and he believes this shows he has genuinely not done anything wrong.  

19. Mr Harvey notified the department that CCCM withdrew their sponsorship of the applicant on 7 April 2020. He stated this to be the date when the applicant’s employment was terminated and he confirmed that all support and remuneration ceased to be provided on 2 May 2020.  

20. There is conflicting evidence before the Tribunal as to whether the applicant was technically employed by CCCM.  Mr Harvey’s Response in the FWC indeed contends that the applicant was not an employee of CCCM.  The applicant’s submissions make the same contention.  However, the Tribunal places significant weight upon the CCCM document dated 10 January 2019, signed by Mr Harvey and the applicant.  The document clearly sets out that the applicant is to be remunerated (in various manners) over a period of two years for running the Church music program (among others).  He was to receive four weeks leave per year.  Mr Harvey’s letter of 16 June 2021 addressed to the Tribunal claims that CCCM ‘sacked’ the applicant for making false claims of money owing to him and making other bizarre and defamatory claims against CCCM.

21. The Tribunal has had regard to Mr Harvey’s claims and the claims of all the witnesses who have provided statements in support of the applicants.  What is clear, based upon the evidence, is that there are no corroborative or contemporaneous documents produced by CCCM to support its allegations of serious wrong doing levelled against the applicant. ON that basis, the Tribunal affords these claims no weight.  Equally, it is clear that Mr Harvey, the applicant and his supporting witnesses have clearly disagreed about matters pertaining to the church and the applicant’s departure from the church.  It is not necessary for the Tribunal to make factual findings concerning these matters and it would be inappropriate to do so, without hearing viva voce evidence from all the witnesses.  No adverse inference ought to be drawn against the reputations of Mr Harvey, CCCM or the witnesses as a result of the unfounded allegations each makes against the other.

22. Based on the above mentioned evidence, the Tribunal finds that the applicant ceased his employment with CCCM in May 2020.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(1)(a).

23. For these reasons, the Tribunal finds 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

24. 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’.

25. 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

26. 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.

    Purpose of applicant’s travel to and stay in Australia

27. On 15 March 2019, the applicant was granted his current Temporary Activity - Religious Work (subclass 408) visa which included his family members.  The family arrived in Australia on 4 April 2019.

28. Based upon the documents referred to above, the Tribunal finds that the applicant was employed by CCCM as a music director/co-ordinator by his sponsor, CCCM immediately following his arrival in Australia and he maintained this position until early May 2020, when Mr Harvey on behalf of CCCM terminated the applicant’s employment. 

29. The applicant’s purpose for being in Australia was, until the time of his termination, in line with the intention of the grant of his visa.  However, as his employment was terminated, he did not meet the intention of the Temporary Activity visa on and from that time.

30. However, it is plain that the applicant has demonstrated that he has obtained work at another Church, City West Church in Brisbane which has offered him employment.  The Tribunal places significant weight upon the oral evidence of Dr Worsfold, who informed the Tribunal that he had been seeking to fill the vacancy for years and until the applicant had applied, the position was vacant for many years.  He stated that the applicant was integral to the operation of City West Church.   

31. The Tribunal affords this consideration minor weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

32. The non compliance with a visa condition arose when the applicant’s employment with CCCM was terminated in May 2020.    

33. The applicant has taken all reasonable steps to rectify the breach. He initiated a claim in the Fair Work Commission for unfair dismissal and has sought the same employment with a another church. 

34. It is clear that the split between the applicant and CCCM was acrimonious, given the content and tone of Mr Harvey’s and the witnesses statements.   

35. The Tribunal places weight upon the fact that there is no corroborative evidence before the Tribunal of CCCM’s claims of wrong-doing against the applicant and the fact that the applicant has complied with other visa conditions.  The applicant emphatically assured the Tribunal that he has always complied with visa conditions in the past and the dispute with Mr Harvey has taken its toll on his health.   

36. The Tribunal affords this consideration some weight in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose

37. The grounds for cancellation arose when CCCM notified the department in writing that sponsorship of the applicant was withdrawn on 7 April 2020 and all remuneration and employment obligations ceased between the two parties on 2 May 2020.

1. Condition 8107(1)(a) which was attached to the applicant’s visa at the time of grant relevantly states that the applicant must not cease to be employed by the employer in relation to which the visa was granted. As the applicant’s employment ceased in early May 2020 by his own admission, he has not complied with Condition 8107(1)(a) since that time. 

2. However, the Tribunal places weight upon the fact that the applicant disputed the circumstances of his termination by filing a claim for unfair dismissal in the Fair Work Commission.  The applicant claimed that he continued to perform music and worship services to some of the CCCM congregation and therefore considered himself to be undertaking employment duties for CCCM.

3. The Tribunal places weight upon each witness statement referred to above, in which the witnesses speak of a ‘falling out’ between CCCM, Mr Harvey, the congregants and the applicants.  The Tribunal finds that these conditions contributed to the applicant’s termination through no fault of his own.

4. Given that the grounds for cancellation appear to be due to matters beyond the reasonable control of the applicant, the Tribunal affords this consideration some weight in favour of not cancelling the visa.

   The degree of hardship that may be caused to the visa holder and any family members

5. The applicant claims that he and his young family would suffer a significant degree of hardship and distress if his visa remains cancelled.  His eldest two daughters are undertaking VCE and hope to go to university. Should the visa be cancelled, they would not be able to complete VCE in Australia and another daughter may have to repeat year 11 which will affect her future adversely. 

6. The Tribunal accepts that the applicants would suffer hardship is the applicant’s visa remains cancelled.  However, weighed against this is the fact that the visa has actually already expired on 4 April 2021.

7. The Tribunal acknowledges that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

   The visa holder’s past and present behavior towards the Department

8. The applicant responded to the NOICC promptly and concisely on three occasions. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

9. The Tribunal gives this consideration some minor weight against cancelling the visa.

   Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

10. Whilst the applicant’s wife’s and children’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife and children.

11. The Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

12. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

13. The Tribunal observes that the applicant’s subclass 408 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 408 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a subclass 408 visa.

14. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

15. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

16. The Tribunal therefore gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

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. The applicants’ children reside in Australia with him and their visas are consequently cancelled as a result of s 140 of the Act.  There is no evidence before the Tribunal to indicate that the applicants’ children would not return home to the Philippines with the applicant.

19. The Tribunal gives this consideration some minor weight in favour of cancelling the visa.

    The impact of any victims of family violence

20. There is no evidence before the Tribunal regarding this issue.

    Any other relevant matters

21. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

22. The Tribunal acknowledges that the applicant may experience difficulties in returning to the Philippines due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

23. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

24. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

25. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 408 (Temporary Activity) visa.

28. The Tribunal has no jurisdiction with respect to the other applicants.

    Vanessa Plain
    Member

    
    

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].