David (Migration)

[2017] AATA 2323

David (Migration) [2017] AATA 2323 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gregorio Jr David
Mrs Evelyn Dela Cruz
Ms Georgelyn Alison David

CASE NUMBER:  1708548

DIBP REFERENCE(S):  BCC2017/732895

MEMBER:Catherine Carney-Orsborn

DATE:8 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 08 November 2017 at 3:58pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Failure to comply with visa conditions – Period of unemployment must not exceed 90 days – Extensive period of unemployment - Secondary visa automatically cancelled

LEGISLATION

Migration Act 1958, ss 65, 116, 140, 348

Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors 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 11 April 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) 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 that the applicant had not complied with a condition of his visa. 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 other 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 8 November 2017 to give evidence and present arguments.

5. 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

6. 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?

7. 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(3)(b) attached to the applicant’s visa. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

8. It is not in dispute that the applicant ceased employment and that period has exceeded 90 consecutive days.

9. 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

10. 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’.

11. The applicants gave oral evidence at a hearing. The Tribunal has before it the Department’s file and further documents and submissions supplied by the first named applicant (the applicant). 

12. The applicant gave evidence that he first came to Australia in November 2011.  He has since returned to the Philippines for a holiday and to see his wife’s family.  The Tribunal explained the issue before the Tribunal.  The applicant stated that his sister had been his previous sponsor however her business was not doing well and the business closed.  He said his job ended in July 2016.

13. He said that since that time he has looked for further employment.  He said he had one company that said they would sponsor him however they only employed him over the holiday period.  They did not sponsor him and did not pay him a proper wage.  He said he has not reported them to any of the authorities. 

14. He states that since that time he has not worked.  He stated that his wife was working as a cleaner at a Hotel. 

15. The Tribunal stated that it has been a long time that he has been in breach of the condition to work for his sponsor.  He again stated he has tried to get work.

16. The Tribunal asked why he could not return to the Philippines.  He said that he wanted to stay in Australia.  He has parents and his sister in Australia.

17. The Tribunal asked what hardship he would face in the Philippines.  He replied that there was nothing for him in the Philippines.  He said he wants to raise his daughter in Australia. 

18. He said he was concerned about his father.  He stated that his father was having medical tests in Australia.  He said they related to his father’s heart.  He said his only concern was that he wanted to stay in Australia with his family.

19. Prior to coming to Australia he worked at Western Union.  He felt he may not have a job when he returns.  He claimed there were problems with drugs in the Philippines.

20. When the Tribunal asked if he had any other concerns as to why he could not return he stated that his ex-wife’s family want to hurt him.  He claimed they have connections with the police.  The Tribunal asked for some background information on his concerns.  He said he had one child from a previous marriage.  He said his ex-wife is in Dubai and his child is with her. 

21. The Tribunal asked if there was anything further he wanted to add.  He said that another friend of his had been allowed to stay and he wanted to stay.  He said he would keep appealing until he was able to stay.

22. The applicant’s wife gave evidence that she did not want to go back to the Philippines.  She said life in the Philippines is hard and she just wants to stay in Australia.  After prompting from the applicant she stated that most people in the Philippines are drug addicts.

23. The purpose of the applicant’s stay in Australia was to work.  He has not worked in Australia since July 2016.  He is not the subject of an approved or pending nomination.

24. He claims that his sister’s business slowed down and was closed and that is why he stopped working. 

25. In relation to hardship he claimed he did not want to return to the Philippines.  When pressed by the Tribunal he stated that he was worried about drugs.  There is nothing to indicate that the applicants are involved in drugs or intend to get involved in drugs in the Philippines.  He did not go into any detail in relation to his claimed concern about drugs in the Philippines. 

26. When again asked about why he has chosen to not return to the Philippines he stated that his ex-wife’s family would harm him.  He later gave evidence that his ex-wife is in Dubai and his first daughter is with her.  He did not provide any details on his claim of fear of harm except to say they had connections with the police.

27. He did expand on why they would want to harm him.

28. There is nothing other than his own assertions to indicate he would be at risk of any harm in the Philippines.  He has travelled back to the Philippines to visit his wife’s family.  He said that he would like to return for a holiday but not live there.  On the evidence before it the Tribunal is not satisfied that he would be subject to any harm if he was to return to the Philippines.  The Tribunal is satisfied that if the applicant was in any danger he would not be able to return to the Philippines for holidays or to visit his wife’s family.

29. The Philippines is his home country.  The 457 visa he has been on was always a temporary work visa.  There is nothing to stop him applying for a further visa off shore. 

30. He has a child who is five years old.  He has said that it would be hard for her to be raised in the Philippines.

31. The Tribunal is satisfied that his daughter who is five years old is of an age where she is able to adapt.  She has not started her formal schooling.  She has her mother’s family in Philippines and will have her parents with her for support.  The Tribunal is satisfied that the applicant’s daughter will be able to be educated and raised in the Philippines.

32. The applicant stated that he was further concerned about his father’s health.  There were no medical reports in indicate what or any illness the applicant’s father may suffer from.  The applicant’s father is currently undergoing testing and has his daughter and her family with him in Australia.  The Tribunal is satisfied that the applicant will be able to stay in contact with his father and communicate with his sister on his father’s health if he returns to the Philippines.

33. The Tribunal has considered all the evidence.  The purpose of the visa is for temporary work in Australia.  The applicant has been in breach for nearly a year and a half.  On the evidence before it the Tribunal is not satisfied any international obligations would be breached.  The Tribunal is satisfied that the applicant may have to apply for a job in the Philippines and arrange for his daughter to be educated.  The Tribunal considers that these are concerns that face any family that is re-locating to another country.  The Tribunal considers that the applicant has acquired further skills in Australia such as English language skills which will be of assistance to him and his family when he returns to the Philippines.

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

    DECISION

35. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Catherine Carney-Orsborn
    Member