de Bruin (Migration) - [2018] AATA 3642

de Bruin (Migration) [2018] AATA 3642 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gustav Jan de Bruin
CASE NUMBER:  1705586
HOME AFFAIRS REFERENCE(S):           BCC2017/474246
MEMBER:Antonio Dronjic
DATE:27 August 2018
PLACE OF DECISION:  Melbourne
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 27 August 2018 at 11:53am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Whether the grounds for cancellation exist – Employment ceased for longer than 90 days – Whether the visa should be cancelled – Where the applicant was made redundant – Where the applicant made a genuine attempt to find employment – Where the recruitment process was drawn out - Where the applicant is currently employed – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 348
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013, Schedule 8, Condition 8107(3)(b)
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Pradhan v MIMA (1999) 94 FCR 91
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 March 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).
The delegate cancelled the visa under s.116 (1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8. Where the terms of a visa condition have been amended during the life of the visa, the version of the condition that must be considered is the version that was applicable at the time of visa grant, unless there is a contrary intention expressed in amending legislation.[1]
[1] Pradhan v MIMA (1999) 94 FCR 91 at [19]. The Court noted that the scheme of the Act and Regulations did not provide for variation of conditions during the term of the visa.
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 primary applicant. The second named applicants’ visa was 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 applicants visa self-executing on the cancellation of the primary 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 named applicants.
Background to the cancellation of the applicant’s visa
The decision record of 10 March 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:
·On 27 November 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 27 November 2019;
·The standard business sponsor who nominated the applicant to work as a Technical Sales Representative was Emerson Process Management Australia Pty Ltd;
·On 9 June 2016 the applicant ceased his employment with the sponsoring business;
·A notice of intention to consider cancellation (‘NOICC’) was issued on 2 March 2017;
·On 8 March 2017, the applicant responded to NOICC; and
·On 10 March 2017, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the tribunal on 22 March 2017 for review of the visa cancellation and with his application submitted copy of the primary decision record.
On 15 June 2018, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 16 August 2018.
The applicant appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. At the commencement of the hearing, he submitted the following documents:
·A copy of the employment contract between the applicant and Clicks IT Recruitment dated 26 September 2017 as evidence of the applicant’s current employment as a Senior Engineering Project Manager at Swinburne University;
·A copy of an e-mail from Ms Tooley, the director Business Engagement at Swinburne University dated 15 August 2018, as evidence of the applicant’s ongoing employment as a Project Manager attesting to the applicant’s skills and qualifications;
·A copy of the offer of employment extended to the applicant by Manpower Group dated 15 August 2018, as evidence that the applicant was offered a 12 months fix term position as a Project Manager with the proposed salary of $190,867 (excluding superannuation).
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 his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceeded 90 consecutive days.
The tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
Mr De Bruin is 43 years of age citizen of South Africa. He is married and has two children (age seven and ten) who are attending school in Australia. The applicant’s brother and two cousins are Australian permanent residents. He stated that he maintains a close relationship with his relatives in Australia.
In South Africa, the applicant completed a Degree in Electronic Engineering and had accumulated more than 11 years of relevant work experience. His wife is a graphic designer with more than 10 years of relevant experience from South Africa. She is and has been working in Australia as a graphic designer for the past two years on a part time basis.
The applicant and his wife had a house in Johannesburg but decided to sell it prior to their arrival in Australia in December 2011. In 2013, they purchased the house in Sandhurst, Victoria and they are still re-paying mortgage.
The applicant was granted his first Subclass 457 visa on 31 October 2011 based on the sponsorship and nomination made by an Australian consulting business located in Brisbane. His nominated occupation was management consultant. The applicant commenced employment at this business in December 2011. By December 2012, together with his family the applicant moved to Melbourne. He was nominated by a different business (ABB) to work as a Business Analyst. He continued to work for the ABB until May 2014 when he was made redundant.
In August 2014, he commenced employment with another Australian business, Emerson Process Management Australia Pty Ltd. He was nominated to work as a Technical Sales Representative and was paid an annual salary of $130,000 excluding the superannuation payments. On 27 November 2015, he was granted a second Subclass 457 visa which was to remain valid until 27 November 2019. In June 2016, he was made redundant as the mining sector was not performing well. He confirmed in his evidence that he ceased employment at Emerson Process Management Australia Pty Ltd on 9 June 2016.
He stated in his evidence that a new position was created at Emerson Process Management Australia Pty Ltd (Area Sales Manager) and that he was involved in a prolonged selection process. He provided documentary evidence of attending the final job interview on 1 March 2017. Ultimately, he was not employed. By that time, his Subclass 457 visa was cancelled.
The applicant gave evidence that his bridging visa “E” does not contain a ‘no work condition’. He stated that he is and has been working as an ICT Project Manager at Swinburne University since September 2017. He secured this employment through a recruitment company Experis (Manpower Group).
The applicant stated that Experis is a party to the Labour Agreement and is committed to nominate him for the position of an ICT Project Manager. He referred to the offer of employment submitted at the commencement of the hearing.
I explained to the applicant that, on the evidence before me, I am satisfied that the ground for the visa cancellation exist and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The applicant conceded that the ground for cancellation is made up.
I indicated that I will take into consideration his oral evidence and documentary evidence submitted is support of his claims. I asked the applicant if there is anything else he wishes to bring to my attention that may be relevant for consideration of visa cancelation. He stated that there is nothing else that he wants to raise with the tribunal.
I granted the applicant additional time until 23 August 2018 to provide further documentary evidence relevant to the approval of the sponsorship status to his prospective employer and their commitment to nominate him for the position should the cancelation be set aside.
On 22 August 2018, the applicant submitted:
·Copy Deed of Variation of a Labour Agreement signed between the Commonwealth of Australia and Manpower Services (Australia) Pty Ltd which identifies ICT Project Manager as one of the occupation specified under the labour agreement;
·Copy Employment Agreement between the applicant and Manpower Services (Australia) Pty Ltd dated 20 August 2018.
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
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?
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. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
In this instance condition 8107 was attached to the applicant's visa, which was granted on 27 November 2015, and which, but for its cancellation, was valid to 27 November 2019.
Based on the evidence before it, including the oral evidence from the review applicant, the tribunal finds that the applicant ceased employment with Emerson Process Management Australia Pty Ltd on 9 June 2016. The tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the tribunal finds that the review applicant did not comply with condition 8107(3)(b).
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
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’.
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]
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for 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 Affairs2006] 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]
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. It has also had regard to the oral evidence from the applicant at the hearing.
The purpose of the visa holder’s travel to and stay in Australia
The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.
The tribunal finds that the purpose of the review applicant’s stay in Australia was to work on a temporary basis. He is highly skilled person with substantial work experience acquired both in South Africa and Australia. He presented himself at the hearing as a credible person.
The applicant was made redundant on 9 June 2016. I accept his evidence that a new position was created at Emerson Process Management Australia Pty Ltd (Area Sales Manager) and that he was involved in a prolonged selection process. By the time he was advised of the outcome of this job application, his visa was cancelled by the Department.
I accept that the applicant did everything he could to find another sponsoring employer. From September 2017, he has been working as an ICT Project Manager at Swinburne University. The reference letter provided on behalf of the University describes the applicant as a key project manager with deep understanding of the technical components, project execution and delivery. It is stated that the applicant is critical to the success of the Research Management program.
Through a recruitment company Experis (Manpower Group) the Swinburne University has offered the applicant a fixed term employment for the period of 12 months at the same position.
Based on the evidence before me, I am satisfied that Experis (Manpower Group) is the party to the Labour Agreement committed to nominate the applicant for this position if the visa cancellation is set aside. Based on the Employment Agreement signed between the applicant and Manpower Services (Australia) Pty Ltd dated 20 August 2018, I am satisfied that the applicant was offered a position of an ICT Project Manager with the annual salary of $185,000 per annum. I am further satisfied that this occupation is specified under the labour agreement.
I have taken into consideration that the applicant’s visa, but for the cancellation, was to remain valid until 27 November 2019.
As explained at the hearing, the purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The tribunal finds that this purpose was not lost as the applicant has found a new employer who is a party to a Labor Agreement and is committed to nominated the applicant to work in his occupation. I give significant weight to this consideration.
The reason for and extent of the breach
The review applicant conceded in his evidence that he received the visa grant letter from the Department containing explanation of the conditions imposed on 457 visa. According to his oral evidence, he was aware of the condition 8107 being imposed on his visa. The tribunal is satisfied on the evidence before it that the review applicant was aware of the conditions imposed on his 457 visa.
In this case, I accept that the applicant took appropriate steps to commence employment with another sponsoring employer. Eventually he was successful.
I find that the applicant’s failure to commence employment with a new business sponsor was due to a prolonged selection process and outside of his control. For this reason I am satisfied that in this instance, there was no significant breach of condition 8107.
Past and present conduct of the visa holder towards the department
I accept that the applicant has not previously breached visa conditions and has been co-operative with the Department.
Degree of hardship that may be caused; whether there would be consequential cancellations under s.140
There is evidence before me that in 2013 the applicant and his wife purchased a house in Melbourne. Both of their children are attending school in Australia and any disruption in their education may cause a hardship to the children.
I accept that the applicant resided in Australia since 2011, has a close relationship with his brother and two cousins who are living in Victoria and that he established close ties with the Australian community. I am satisfied that, If the visa remains cancelled, the applicant’s family in Australia will be adversely affected.
I accept that leaving Australia may involve some hardship to the applicant, his wife and children but I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish himself in South Africa, given his qualifications and work experience. Both the applicant and his wife have spent the majority of their lives in South Africa.
Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant was granted a temporary visa which creates no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis.
Whether there are mandatory legal consequences, such as whether cancellation would
result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
Act which prevent the person from making a valid visa application without the Minister’s
Intervention

The applicant is currently holding a bridging visa ‘E”. 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 him to remain in Australia. If that is the case, he and his wife 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.
I am satisfied that, if the applicant’s visa remains cancelled, he will not be affected by a ‘risk factor’ prescribed in Schedule 4013 and find that this consideration does not favours the reinstatement of the applicant’s visa.
Whether there would be consequential cancellations under s.140
The tribunal notes that there is a consequential cancellation of visa for the applicant’s wife and children. Whilst her visa is 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.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
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).
There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.
The impact on any victims of family violence
There is no evidence before the tribunal regarding this matter.
Having regard to the findings above and the unique 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. The tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.
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.
Antonio Dronjic
Member