Danso (Migration)

[2019] AATA 4833

Danso (Migration) [2019] AATA 4833 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Elvis Danso

CASE NUMBER:  1901363

HOME AFFAIRS REFERENCE(S):           BCC2016/4133876 BCC2018/4133876

MEMBER:Mr S Norman

DATE:17 July 2019

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 (Temporary Work (Skilled)) visa.

Statement made on 17 July 2019 at 11:42am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – Driller – ceased employment with sponsor – continued working in nominated occupation with different employer – re-employed by sponsor – young family – medical condition – hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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)(b) of the Act on the basis the applicant was determined to have breached condition 8107 – employment conditions. 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 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his partner (Ms Miriam OWUSU).

4. 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

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)(b) 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)(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 (see Attachment).

7. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (the Temporary Work visa) on 16 November 2016 (stay period of visa – 16 November 2020). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 January 2019,[1] the applicant was advised there may be grounds to cancel his visa under s.116(1)(b); as it appeared he was in breach of condition 8107(3)(b). That stated:

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

   [1] Department – folio 23.

8. In the NOICC, the delegate noted that the standard business sponsor who had nominated the applicant in the most recently approved nomination for the Temporary Work visa was Epoca Environmental P/L (the sponsor). The Department had received written advice from the sponsor dated 7 November 2016, that the applicant had ceased employment with them effective from 25 October 2016.[2] Prior to the Department delegate’s decision, there was no subsequent advice the applicant had returned to work for the sponsor or an associated entity of the sponsor.

   [2] Department – folio 5.

9. The delegate then noted the occupation listed in the nomination (Driller - ANZSCO: 712211), is not one specified in the relevant legislative instrument referred to in 8107(3)(a), and accordingly while the applicant continued to hold the Temporary Work visa, he could only lawfully work in Australia for either the sponsor or an associated entity of the sponsor. After then considering the evidence, the delegate was satisfied the applicant had ceased employment with the sponsor for a period exceeding 90 consecutive days.

10. In their decision, the Department delegate also noted the circumstances in 8107(3A) do not apply to the applicant because his occupation is not specified in an instrument in writing to exempt him from having to meet the requirements of 8107(3)(a)(ii). Consequently, for the applicant to be able to lawfully work for another sponsor in Australia while he held his visa, he would first need to lodge a new Temporary Business Entry Nomination application in respect of him and for the Department to approve this. However, the delegate was satisfied that no such further approval has been granted by the Department.

11. After then noting the applicant did not comment on whether grounds existed to consider cancelling his visa (in his response to the NOICC), the delegate then found that the applicant had ceased employment for more than 90 consecutive days and therefore did not meet 8107(3)(b) of condition 8107. The delegate then found that grounds for cancellation of the applicants Subclass 457 visa existed.

12. For these reasons, the Tribunal is also satisfied the ground for cancellation in s.116(1)(b) of the Act, exists. 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

13. 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’.

14. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant was granted a Temporary Work visa, and this enabled him to work in Australia for an approved sponsor in a skilled occupation which could not be filled from within the Australian workforce. The sponsor’s nomination was approved on 16 November 2016 for the applicant to be engaged as a Driller (ANZSCO: 712211). However, on 7 November 2016, the sponsor advised the Department in writing that the applicant ceased employment with the company on 25 October 2016. Therefore, the purpose for which the visa was granted to the applicant ceased on 23 January 2017, which is 90 days after the applicant ceased employment with the sponsor. In his response to the NOICC,[3] the applicant had claimed:

    ·     he was devastated to receive the NOICC from the Department

    ·     however he did concede he ceased employment with his sponsor and had obtained employment with another company (Terrarest P/L) within the 90 day period

    ·     he had continued to work in his nominated occupation as a Driller

    ·     he assumed he was able to work in the same nominated occupation

    [3] Department – from folio 38.

15. The applicant also lodged other evidence which the Tribunal has had regard to (including from employers[4]). On 10 January 2019, the applicant was included in a Student Subsequent Entrant (subclass 500) visa as a dependent spouse of a primary Student Visa holder (Miriam OWUSU). That application is being processed. However, this indicated the applicant now intends to remain in Australia temporarily as a dependent of his wife. This new intention for remaining in Australia is not in keeping with the purpose for which his Temporary Work visa had been granted.

    [4] Department – from folio 37.

16. When discussed at hearing, the applicant conceded he had ceased to work for his sponsor on 25 October 2016. He had then undertaken drilling work for other companies. He most recently ceased work in March 2019, with Macquarie Drilling after that business ‘folded’. He had then reconnected with his sponsor (Epoca Environmental P/L) and was again working for the sponsor (from around mid-2019).

17. In the circumstances, and though the applicant had breached some of the conditions of his visa, the Tribunal is satisfied that on arrival and presently, he had travelled to and resided in Australia, for the purposes his Temporary work visa had been granted.     

18. Regarding the extent of compliance with visa conditions, between about 25 October 2016 and mid-2019, and in breach of a condition of his visa, the applicant had worked for other drilling companies. However, the Tribunal accepts that as he claimed, it is plausible he continued to work in the occupation for which he was nominated for the Temporary Work visa.

19. Regarding the degree of hardship that may be caused to the applicant or his family, in his response to the NOICC,[5] the applicant had claimed:

    ·     he is a law-abiding citizen

    ·     he is unaware he had breached a condition of his visa

    ·     he had maintained his health insurance within his visa period

    further:

    ·     his partner had been diagnosed with hyperemesis[6] and the news of cancellation would cause her psychological drama

    ·     he has two young children, he and his partner are expecting their third child in a few months

    ·     the cancellation of his visa would affect his young family

    [5] Department – from folio 38.

    [6] Though not always an authoritative source, Wikipedia stated ‘Hyperemesis gravidarum (HG) is a pregnancy complication that is characterized by severe nausea, vomiting, weight loss, and possibly dehydration. Feeling faint may also occur. It is considered more severe than morning sickness’, Hyperemesis gravidarum,

20. By letter of 9 July 2019,[7] it was claimed that Epoca Enviornmental P/L was an approved company sponsor, and had nominated the applicant to work for the company as a driller (Notification of approval lodged[8]); however the applicant’s employment with Epoca ‘did not work out’; sometime later, a further position was offered to the applicant and the applicant had ‘performed commendably’; and the author requested support for the applicant’s ‘appealing his 457 visa cancellation.

    [7] Tribunal – folio 32.

    [8] Tribunal – folio 29.

21. Also lodged was an apparently undated email/letter from Blacktown City Council thanking the applicant for participating in volunteer work for the Council.[9]  Also lodged was a Certificate of Induction dated 24 February 2019; and which related to the applicant’s ‘induction as a leader of Youth Ministry according to the Word of God’.[10]

    [9] Tribunal – folio 27.

    [10] Tribunal – folio 26.

22. At hearing, the applicant explained that he had two minor children and one infant child (born in May 2019). He had to work to pay for his family in Australia. His wife said she was presently studying a Masters of Laboratory Management at Macquarie University (though she had taken one semester off for the birth of her child). After then considering all the circumstances, the Tribunal is satisfied that cancelling the applicant’s visa may give rise to reasonable hardship for his young family.

23. Regarding the circumstances in which the ground for cancellation arose, these were that the applicant ceased working for his nominated sponsor. Neither did he obtain a new approved nomination to work for different sponsor since ceasing his employment.

24. At hearing the applicant said he had some problems with his sponsor (often relating to misunderstanding what he was being told), however and as noted above, those problems were sufficiently resolved for the sponsor to re-employ the applicant and write a positive reference for him dated 9 July 2019.

25. Next, the Tribunal has no evidence that the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled (the applicant’s partner and three children reside in Australia on an independent visa). The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

26. 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.  

27. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia. 

28. That being said, given the applicant continues to support his young family in Australia, given his wife continues to study at the Master’s level in Australia, given the applicant had continued to work in the nominated occupation for which his Temporary Work visa was granted, given the applicant has again started work for his nomination sponsor, and given that (at least prior to it being cancelled) the applicant’s Temporary Work visa was not proposed to cease until 16 November 2020, the Tribunal is not satisfied the Temporary Work visa should be cancelled.

29. The Tribunal also advised the applicant that he must in future, continue to abide by all conditions attached to the Temporary Work visa.

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

    DECISION

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

    Mr S Norman
    Member  

    
    

    ATTACMENT

    Condition 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
    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or
    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) 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; and

    (aa)  subject to paragraph (c), the holder must:

    (i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
    (ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

    (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive days; and
    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder: 

    (i)  must hold the licence, registration or membership while the holder is performing the occupation; and
    (ii)  if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
    (iii)  if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
    (iv)  must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
    (v)  must comply with each condition or requirement to which the licence, registration or membership is subject; and
    (vi)  must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
    (vii)  must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (3A)  For subparagraph For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
    (aa)  if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and
    (b)  if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
    (b)  a Subclass 402 (Training and Research) visa; or
    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;
    the holder must not:
    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.