Da Silveira v Minister for Immigration and Border Protection

[2016] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

DA SILVEIRA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] FCCA 1703

Catchwords:
MIGRATION – Temporary Business Entry (Class CU) Temporary Work (Skilled) (Subclass 457) visa – where visa holder ceased employment – where employment ceased for more than 90 days – discretion to cancel – no jurisdictional error.

Legislation:

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

Migration Regulations 1994 (Cth) schedule 8, condition 8107(3)(b)
Fair Work Act 2009 (Cth) s. 352
Fair Work Regulations 2009 (Cth)
Federal Circuit Court Rules 2001, r.44.12

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 61

Applicant: JONATAS ALESSANDRO DA SILVEIRA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: BRG 72 of 2016

Judgment of: Judge Jarrett

Hearing date: 22 April 2016

Date of Last Submission: 22 April 2016

Delivered at: Brisbane

Delivered on: 8 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms McConnel

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The amended application filed on 1 April, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,416  .

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 72 of 2016

JONATAS ALLESSANDRO DA SILVEIRA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 January, 2016 to affirm a decision of the delegate of the first respondent to cancel Mr da Silveira’s Temporary Business Entry (Class CU) Temporary Work (Skilled) (Subclass 457) visa. On 4 April, 2016 I listed the application for determination as a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The first respondent opposes the application for review and urges that I dismiss the application.  The second respondent enters a submitting appearance.

3. Despite directions to do so, Mr da Silveira has filed no written submissions to support his application.  I have written submissions from the first applicant.

Background

1. Mr da Silveira was granted a Subclass 457 visa on 18 July, 2012 to work in the nominated position of Stock Feeder (described in the Tribunal’s decision as Dairy Farmer), for his sponsor McNamee Partners Pty Ltd.  His visa was subject to condition 8107 (found in schedule 8 of the Migration Regulations 1994 (Cth)). At the relevant time, that condition was in the following terms:

   8107 

   (3) If the visa is, or the last substantive visa held by the applicant was,a Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the holder met the requirements of subclause 457.223 (2) or (4):

   (a) the holder:

   (i) must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii) unless the circumstances in subclause (3A) apply:

   (A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor - must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

   (C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor - must work only in a position in the business of the sponsor.

   (aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and

   (b) if the holder ceases employment - the period during which the holder ceases employment must not exceed 90 consecutive days; and

   …

2. At a point in time I am not able to determine from the evidence, Mr da Silveira’s employer notified the first respondent’s department that he had ceased employment with that employer effective from 14 November, 2014.  Consequently, on 2 June, 2015 the first respondent’s department wrote to Mr da Silveira giving notice of his intention to consider cancellation of Mr da Silveira’s visa.  The letter invited him to comment on grounds for cancellation identified by the Department.

3. Mr da Silveira responded by a letter on 9 June, 2015.

4. On 9 June, 2015 a delegate of the first respondent cancelled Mr da Silveira’s visa.  Mr da Silveira promptly applied for a review of the delegate’s decision by a migration review Tribunal.  He provided various accompanying documents including health and employment records, a statement to Police and records relating to his partner with his application for review.

5. On 7 September, 2015, the Tribunal wrote to Mr da Silveira advising him that it had considered the material before it however was unable to make a favourable decision on that information alone.  It invited Mr da Silveira to a hearing before the Tribunal to give evidence and present arguments on the review.  The hearing took place on 11 December, 2015.

6. The Tribunal identified that there were two matters for consideration.  First, whether a ground for cancellation of the visa existed.  Second, whether as a matter of discretion, Mr Da Silveira’s visa should be cancelled.

7. The Tribunal found that Mr Da Silveira had not complied with a condition of his visa, as he had ceased employment for a period longer than 90 days.  Of that matter, the Tribunal said:

   9.  The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 18 July 2012. It was granted on the basis of a nomination for the position of Dairy Farmer with McNamee. At the hearing the applicant confirmed that he started working for McNamee before he was granted the Subclass 457 visa in July 2012. He confirmed that he ceased that employment in about October 2014. The reasons he ceased working for the sponsor are discussed in more detail below. He confirmed that he has not worked for any other employer since November 2014 and he is not currently sponsored for employment purposes.

   10.    On the basis of the delegate’s decision record and the oral evidence provided at the hearing the Tribunal finds the applicant ceased employment with his sponsor in about October/ November 2014. He claims he has not undertaken any employment since that date. The Tribunal finds the applicant has ceased employment for a period of more than 90 days. He is therefore in breach of condition 8107.

8. The Tribunal then moved to consider whether Mr da Silveira’s visa ought to be cancelled. There are no prescribed matters to which a decision-maker is required to have regard to in considering whether to cancel a visa under s.116(1) of the Act.

9. The Tribunal’s decision record reveals that it took the following matters into account:

   a)the matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers”;

   b)a complaint Mr da Silveira had made to the Fair Work Commission about unfair dismissal;

   c)that Mr da Silveria had been diagnosed as suffering from stress and depression;

   d)the reason why he had remained in Australia even though he was no longer working;

   e)since being in Australia, Mr da Silveria had learnt to speak, write and read English, he has worked and paid tax here and when he left Brazil he had sold everything and he has nothing to go back to in Brazil;

   f)his family are in Brazil and provide him with contact and support;

   g)he had not tried to obtain employment similar to that which he was undertaking for his sponsor because he had been depressed.  He did not want to work for his old sponsor again;

   h)that Mr da Silveira had not breached any other conditions of his visa;

   i)he had  a partner in Australia who was the holder of student visa.  He was financially dependent upon her; and

   j)there was no evidence that either Mr da Silveira or his partner were likely to be ranted permanent visas in the foreseeable future.

10. The Tribunal considered each of those matters.  In respect of the circumstances in which Mr da Silveira’s employment came to an end, the Tribunal said:

    23.    Based on the documentation in relation to the applicant’s complaint to the Fair Work Commission and his oral evidence, the Tribunal accepts that the applicant ceased work for the sponsor in about October/November 2014 because of difficulties he experienced in the workplace, and that he was unable to cope with the situation which did not improve when he returned to work in July 2014 after the settlement. It accepts that he subsequently suffered some depression however he has told the Tribunal that this has now resolved; he has stopped taking medication and he no longer receives counselling or psychological support. His aunt, a psychologist who has been supporting him, thinks he is now fine.

11. The Tribunal recorded that Mr da Silveira remained in Australia because he wants to become a permanent resident and does not want to return to Brazil.  However the Tribunal was mindful that the purpose of the Mr da Silveira’s visa was to fill temporarily a skill shortage. The Tribunal correctly noted that there was no evidence before it to indicate that Mr da Silveira has taken steps to obtain suitable employment in his nominated occupation or any other skilled occupation. The Tribunal noted that there was no evidence to indicate that Mr da Silveira’s expectation to secure permanent residence was realistic or imminent.

12. The Tribunal had regard to the fact that Mr da Silveira’s partner was studying in Australia however he did not provide evidence that she had a definite plan with respect to employment or sponsorship.  The Tribunal did not think there was any evidence of a compelling need for the applicant to remain in Australia.

13. The Tribunal noted that there was no evidence to indicate that there had been any problem with Mr da Silveira’s past or present conduct towards the Department. The Tribunal accepted that the ground for cancellation arose in circumstances where there was conflict with Mr da Silveira’s sponsor who may not have provided him with appropriate and safe work conditions. However, the Tribunal noted that the employment relationship broke down over 12 months ago and Mr da Silveira had not provided any evidence to confirm that he has secured future employment in a skilled occupation with a standard business sponsor. Without that, Mr da Silveira would continue to not meet the requirements for holding a Subclass 457 visa.

14. The Tribunal considered Mr da Silveira’s claim that he may suffer hardship if his visa was cancelled because his partner is in Australia on a Student visa. The Tribunal accepted that they have been together in Australia since 2013 and a separation might cause some emotional hardship.  However the Tribunal also considered that she was not dependent on him financially.  The Tribunal thought it significant that Mr da Silveira had family support in Brazil.

15. Futher, the Tribunal was satisfied that any separation from his partner needed only to be temporary as her course would finish within one year and there was no evidence to suggest that she was likely to be granted a permanent visa in the foreseeable future.  The Tribunal considered that Mr da Silveira’s partner’s migration status would be unaffected by any cancellation of Mr da Silveira’s visa.

16. The Tribunal noted that Mr da Silveira feared returning to Brazil because of his previous employment as a police officer.  He indicated that he was shot about 10 years ago.  However, the Tribunal thought that it was significant that he had lived in Brazil for a few years after that incident.

17. The Tribunal considered, but did not accept that any international obligations would be breached as a result of the cancellation of Mr da Silveira’s visa.

18. The Tribunal concluded that the appropriate decision was to cancel Mr da Silveira’s visa.

Grounds of review

1. On 1 April, 2016 Mr da Silveira filed an amended Application for Review.  That amended application specified no grounds of review.  However, in an attachment to the amended application Mr da Silveira specified the following grounds (faithfully reproduced):

   To Minister for Immigration and Border Protection

   I would like to start this letter by saying that I just do not think the decision of the Tribunal was rigth, and fair because I didn’t left my job, in the ocasion I was sick, with medical license, as Mr Minister could see in the decision made by Tribunal. I went to the doctor because I was very stressed and early depression. This depression was caused for what I suffered at the farm where I worked for more than two years.  When they (Mcnamee) “fired me” for the second time I was sick, wich no conditions to return to work, taking strong medication and feeling very depressed and downtrodden by what i have been pass through.

   I thought the Mc’s namee could understand my situations,, but what they really wanted is that I come back to work anyway, even sick.

   I did not have strength to go back to fair work and due all over again to make a new complaint against them.

   Resume that I believe this decision is not correct by four factors;

   1- The law in Australia say’s that the employer may not dismiss the employee when he or she is sick, carrying a doctor certificate.

   2- I was more than 90 days away from work (without financial remuneration) was not because I wanted, was because I didn’t have mental health to return to work at that time required by the Mcnamee.

   3- I didn’t broke any rules, I was advised by Dr Edward Youssef to get away from work to take care of my health, because it could worsen in a higher level of stress and depression, which I was already.

   I suffered for not being citizen, for not speak fluently English, was mistreated and humiliated several times on this farm.

   It was not easy to hold those two years. I never stopped working between the time I was employed, even suffering all these humiliations I was there firm and strong, because my goal is to stay and live in Australia.

   In any moment the Tribunal took into any consideration the racism I suffered with my employment.

   4 - I believe that the decision to cancel my visa was unfair without taking into consideration what happened to me during my employment with Mcnamee

   I believe, that Mr Minister could make a fair decision based on my history during these two years.

   I live in Australia for 6 years and I’m fighting, for what I think is right.

   I would you like an opportunity to look for a new employer, so I can work and prosecute the profession in which I was acting.

Consideration

1. There can be no doubt that the Tribunal correctly found that the applicant had failed to comply with condition 8107 of the Regulations because he had ceased employment for a period of more than 90 days. At the hearing, the applicant confirmed the he ceased employment in about November, 2014 and had not worked since that time.  He had not sought out any work either.  In Mr da Silveira’s response dated 9 June, 2015 to the Department’s notice of intention to consider cancellation Mr da Silveira confirmed that he had ceased employment on 12 November, 2014.

2. I have considered whether the text of condition 8107(3)(b) might be properly construed as applying only where a visa holder’s employment comes to an end (or “ceases”) by a termination of that employment by the visa holder.  If that construction is correct, then a termination of the visa holder’s employment by the employer or sponsor would not engage the condition and the visa holder could not be said to have failed to meet the condition.  On a proper analysis, however, such a construction would impermissibly strain the text of the section.  Moreover, such a construction would not be constituent with the purpose of the condition, which appears to be to ensure that visa holders continue to be employed and thereby fulfil the purpose for which the visa was granted.

3. The Tribunal considered the matters raised for its consideration by Mr da Silveira.  He does not suggest that the Tribunal misunderstood any of the matters he brought to the Tribunal’s attention.  None of the matters considered by the Tribunal could be said to be irrelevant to the discretion that the Tribunal was called upon to exercise.  Neither can it be said that the Tribunal did not consider a matter that it was obliged to consider when exercising the relevant discretion.

4. I turn to consider the matters raised specifically by Mr da Silveira in his amended application.

5. Mr da Silveira suggests that the law in Australia is that an employer may not dismiss an employee when the employee is sick and is “carrying a doctor certificate”. But that proposition is not correct.  An employer may dismiss an employee who is sick and who is absent from work on sick leave, provided the reason for the employee’s dismissal is not that the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth): s.352 of the Fair Work Act 2009 (Cth).

6. The Tribunal clearly considered each of Mr da Silveira’s claims in respect of his employment with his sponsor and the circumstances surrounding the Fair Work Action he took, as well as his evidence in respect of his subsequent dismissal and  mental health.

7. The third matter alleged is that the Tribunal failed to consider Mr da Silveira’s mental health and the racism to which he says he was subjected when working for his sponsor. 

8. The Tribunal clearly considered Mr da Silveira’s health concerns and specifically his mental health.

9. It also considered Mr da Silveira’s claims in respect of his employment that led to the action that he took with the Fair Work Commission.  The Tribunal had before it, for example, Mr da Silveira’s statement that he made to the Police concerning the conduct of another employee towards him and which had racial overtones.  The Tribunal referred to that statement and also recorded that Mr da Silveira’s concerns with how he was treated in his sponsor’s employment included racism.  The circumstances that led to Mr da Silveira ceasing work in March, 2014 and then recommencing his employment following his application to the Fair Work Commission were considered by the Tribunal.

10. As to the fourth matter, the first respondent submits that Mr da Silveira’s argument that the decision of the Tribunal was unfair because it did not take into consideration what happened to him during his employment with his sponsor, is nothing more than an impermissible attempt to engage in a review of the merits of the Tribunal’s decision.

11. I agree with that submission. In my view, the Tribunal considered the circumstances surrounding Mr da Silveira’s employment with his sponsor and his subsequent dismissal. The circumstances surrounding the applicant’s employment went to the Tribunal’s exercise of the discretionary powers vested in it by s.116(1) of the Act. There was nothing unreasonable, in the sense explained by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 61, about the Tribunal’s exercise of the relevant discretion.

Conclusion

1. In my view, the Tribunal’s reasons do not reveal any jurisdictional error in its decision.  I am satisfied that the amended application has not raised an arguable case for the relief claimed by Mr da Silveira.  The Amended Application for Review must be dismissed with costs fixed in the sum of $3,416 as the first respondent seeks.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 July, 2016.

Date: 8 July, 2016