Dang (Migration)

[2018] AATA 5440

Dang (Migration) [2018] AATA 5440 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tran Ngoc Thuong Dang

CASE NUMBER:  1724199

HOME AFFAIRS REFERENCE(S):           BCC2017/2593247

MEMBER:John Cipolla

DATE:17 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 17 October 2018 at 9:41am

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Business (Long Stay)) visa – applicant ceased to work in nominated occupation – applicant had ceased employment exceeded 90 consecutive days – breached condition 8107 – applicant made every attempt to regularise his immigration status – applicant was the subject of exploitation and abuse – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 359A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 did not comply with condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Hydro Majestic Holdings Pty Ltd. On 28 September 2017 the Department made a decision to cancel the applicant’s visa as he ceased working for the sponsoring business on 26 February 2017 and the period in which the applicant had ceased employment exceeded 90 consecutive days.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 4 September 2017.  The NOICC particularised the ground for cancellation and why the Departmental delegate believed that the ground existed, namely the cessation of the applicant’s employment with his nominating business on 26 February 2018 and his failure to hold a valid nomination for more than 90 consecutive days since that time.

6. The applicant responded to the NOICC.  The applicant stated that he had signed a contract with the sponsoring business to work 38 hours per week on a 7 day rotating roster for an annual salary of $55,000 per annum. The applicant stated that he had been forced to work more than 100 hours per week in the position and was advised by his sponsoring employer that if he failed to abide by these ongoing conditions of employment for the full 4 years of the Subclass 457 visa that they would not sponsor him for permanent residence beyond that time. The applicant stated that after 2 years in the position he had a discussion with his sponsoring employer about his terms and conditions and about the prospect of them sponsoring him for permanent residence and they reiterated that unless the applicant continued to work 100 hours plus per week they would not support him for permanent residence beyond the expiration of the 457 visa.  The applicant stated that he ceased employment in February 2017 because of the ongoing exploitation he was experiencing at the hands of his employer.

7. The Departmental delegate considered the applicant’s response to the NOICC and proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 28 September 2017. The delegate noted that the applicant was not the subject of an approved nomination since ceasing employment with his sponsor on 26 February 2017.  The delegate had regard to the relevant considerations in order to determine whether or not the visa should be cancelled and proceeded to cancel the applicant’s visa having regard to those considerations.

8. The applicant lodged an application for review with the Tribunal on 6 October 2017.

9. On 26 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 2 February 2015, valid to 2 February 2019 but that this visa was cancelled on 28 September 2017.  The letter noted that the applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.  The letter noted that the applicant ceased being employed by his sponsoring business on 26 February 2017 and that on 28 September 2017, the date on which the applicant’s visa was cancelled he had not worked for his sponsor for more than 90 consecutive days. The letter noted that a recent check indicated that no new relevant business nomination had been approved in respect of the applicant since his visa was cancelled. The Tribunal invited the applicant to provide any evidence as to whether or not he agreed that the grounds for cancellation existed and any evidence as to why his visa should not be cancelled.

10. The Tribunal received a response to the 359A letter on 4 July 2018. The response included a comprehensive submission from the applicant’s then migration agent Mr Paul Sadler.  This submission has been duly considered by the Tribunal.

11. The submission from the applicant’s migration agent conceded that the ground for cancellation of the applicant’s visa did exist because he ceased to work for his sponsoring employer for more than 90 consecutive days. The submission makes reference to the relevant discretionary considerations. The submission notes the efforts that the applicant had gone to in order to affect a new sponsoring business and that this involved substantial expenditure on migration agents to assist in this process. The submission notes that the applicant ceased employment with his sponsoring business due to the fact that he was required to work extensive hours in the position in breach of his contract of employment, additional hours for which he was not paid and that he felt vulnerable and disempowered by the employer’s treatment of him. The applicant stated that he had been led to believe that at the end of his Subclass 457 visa his sponsoring employer would sponsor him for permanent residence but only if he kept working extensive hours. The applicant stated that he could not sustain this beyond the 2 years that he worked for the sponsoring business and that he is why he ceased employment and then took proactive steps to find a new sponsor.

12. The Tribunal conducted a hearing on 16 October 2018 and the applicant attended the hearing with his newly appointed migration agent and the applicant and Tribunal were assisted by a Vietnamese telephone interpreter.  The applicant’s command of English was good and he deferred to the interpreter as required.

13. At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review. The Tribunal noted that the evidence indicated that the applicant ceased work for his sponsoring employer on 26 February 2017 and that at the time of the cancellation of his visa on 28 September 2017 the period during which the applicant had ceased employment with his sponsor had exceeded 90 consecutive days. This fact was conceded to.

14. The applicant provided his personal details. The applicant advised that he was born in Vietnam.  The Tribunal asked the applicant where he learned to speak English and he advised that he undertook a Diploma of Hospitality in Singapore, a course of 2 years duration, and that he undertook English language studies in Vietnam and Singapore.  The Tribunal asked the applicant about his work experience and he advised that he had worked for the Sheraton Hotel in Macau for 2 years and the Sheraton Hotel in Nga Trang Vietnam for a period of 2 years after completing his studies in Singapore.

15. The Tribunal asked the applicant what made him decide to come to Australia to work. The applicant stated that a friend advised him about the opportunity to work and live in Australia and that it could potentially lead to a pathway to permanent residence. The applicant stated that he was referred to the Hydro Majestic Hotel in the Blue Mountains who were looking to employ a Cafe and Restaurant Manager. The applicant advised that he arrived in Australia in February 2015 to take up the role and commenced employment immediately. The applicant stated that he worked in the position until February 2017 at which time he ceased employment. The applicant stated that the reason that he ceased employment at this point in time is that he was physically and mentally harassed and abused by his employer.

16. The Tribunal asked the applicant whether he signed a contract of employment. The applicant stated that he did sign a contract of employment to work 76 hours per fortnight. The applicant stated that the reality of his workplace was that he was often working more than 100 hours per week 7 days per week and being forced to live on site at the hotel premises in the Blue Mountains for which rent was deducted from his salary.

17. The Tribunal asked the applicant whether he reported his employer to the Department of Immigration or to Fair Work Australia. The applicant stated that he did not go to the Department but had since commenced action with Fair Work. The applicant stated that he had an expectation that the sponsoring business would sponsor him for permanent residence. The applicant stated that his boss advised him that he would need to work for the full 4 years of the visa, at which time the business would consider sponsoring him. The applicant was further advised that he would have to sustain the conditions of employment or the offer of permanent residence would not be made. The applicant advised that he tried to find another sponsoring employer but it was not easy to affect this.

18. The applicant stated that he found a prospective sponsor in Bankstown, a business, called the Iris Hotel and that he was provided with a contract of employment for a position with this business. The applicant stated that a new sponsorship with this business was not affected and that he lost a significant amount of money that he paid to an unscrupulous migration agent to affect a prospective sponsorship outcome.  The applicant stated that he was then referred to another migration agent Mr Eddie Kang and he paid a significant amount of money to this agent to effect a sponsorship with a new business. The applicant stated that he lost a large amount of money that he paid to both migration agents. The applicant stated that Mr Kang is a discredited Korean businessman who had been sentenced to 12 months in prison for fraud and misleading conduct in his dealings with overseas students on the promise of obtaining them permanent residence. The applicant stated that he initiated an application with NCAT in NSW in order to try and recoup lost funds.  The applicant stated that for the first prospective sponsorship he paid and lost $80,000 to a purported migration agent and for the second prospective sponsorship he paid $35,000 to Mr Eddie Kang which was also lost. The Tribunal asked the applicant how he was able to raise these funds and he advised from family support in Vietnam.  The hearing concluded.

    Does the ground for cancellation exist?

19. 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. In this instance condition 8107 attached to the applicant’s visa. The relevant paragraph of this condition is 8107(3)(b) which requires that if the applicant ceases employment with the sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days.

20. As indicated above, the evidence before the Department indicated that the applicant’s employment ceased effective 25 February 2017 this fact is not in dispute.

21. At the time of the delegate’s decision, the applicant had ceased employment with the sponsor that last nominated him for a period which exceeded 90 consecutive days. On this basis, the Tribunal finds that the applicant breached condition 8107(3)(b) of his Subclass 457 visa.

22. For these reasons, the Tribunal is 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

23. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

24. The Tribunal has first considered the purpose of the applicant’s stay in Australia and whether there is a compelling need for him to remain in Australia. The purpose for which the 457 visa was granted is for the applicant to work in the approved nominated occupation of Café and Restaurant Manager for his former sponsor. The Tribunal considers that the purpose for which the visa was granted ceased, when the applicant ceased employment with his former sponsor.  The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to extenuating factors. The evidence before the Tribunal indicates that the applicants signed a contract of employment to work 38 hours per week yet he was forced into working more than 100 hours a week for his sponsoring employer, in addition to this the applicant had to live on site at the Hydro Majestic Hotel and that rental for his accommodation was debited from his salary each fortnight. 

25. The applicant gave his evidence in an honest and forthright way and the evidence indicates that the applicant made every attempt to regularise his immigration status through finding new employment since the cessation of his employment. The evidence before the Tribunal indicates that the applicant’s nominating employer clearly took advantage of the applicant for the 2 years that the applicant worked in the business by forcing him to work in excess of 12 hours per day 7 days per week and threatening the applicant that if he failed to do this they would not pursue a permanent residence application on his behalf at the expiration of the Subclass 457 visa period.  The evidence indicates that the applicant was the subject of exploitation and abuse at the hands of his employer which he sustained for 2 years before ceasing employment in February 2017 when he decided that the conditions of employment were not sustainable.

26. The Tribunal notes that the applicant has substantial experience as a Café and Restaurant Manager and that he has excellent English language skills and has overseas experience from Macau and Vietnam working for an international hotel chain, the Sheraton group.

27. The Tribunal also notes that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and will need to depart Australia to lodge a future application and this will be an additional financial burden for the applicant. The Tribunal notes that the factors giving rise to the cancellation of his visa were beyond his control and that he made every effort after ceasing employment to regularise his migration status and that he lost a considerable amount in pursuing this through unscrupulous migration agents. These considerations when cumulatively considered weigh in favour of not cancelling the visa.

    CONCLUSION

28. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    John Cipolla
    Senior Member