DE JESUS (Migration)

[2019] AATA 2767

DE JESUS (Migration) [2019] AATA 2767 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vic DE JESUS

CASE NUMBER:  1816429

HOME AFFAIRS REFERENCE(S):           BCC2018/854559

MEMBER:Jennifer Cripps Watts

DATE:9 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2019 at 5:20pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – position of Cook – applicant ceased employment with the sponsor over 90 days – no new sponsor within the prescribed time period – claims against previous employer – family financial difficulties – Workplace Relations investigation – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8; Condition 8107

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2018 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).

2. The delegate cancelled the visa under s.116(1)(b) because the applicant had not complied with a condition of the visa (that is the subject of this review). The visa was granted under the condition that the applicant meet condition 8107 of Schedule 8 to the Migration Regulations 1994 (the Regulations).  This requires, essentially and relevantly to this matter, that the applicant must continue to work for the sponsor or, if employment ceases with the sponsor, that the applicant finds a new sponsor within 90 days.  The applicant ceased employment with the sponsor, Paddy N Ed Pty Ltd trading as the Echuca Hotel (the Echuca Hotel) on 30 October 2017.  He did not find a new sponsor within the prescribed time period.   The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. After his visa was cancelled, the applicant applied for review by the Tribunal on 5 June 2018, within time.  The applicant’s matter was constituted to this member on 26 October 2018 and an invitation to attend a scheduled hearing on 21 November 2018 was sent to him.  About a week before the hearing, on 15 November 2018, the applicant sent an email to the Tribunal requesting postponement.  He gave reasons which were considered, including that he was hopeful of finding a new sponsor, his mother had passed away and that he was moving house.  The Tribunal granted an extension of time and rescheduled the hearing some seven or so weeks later, being of the view that this was a reasonable amount of time, in the circumstances, for the applicant to provide evidence of sponsorship relating to his Subclass 457 visa.  The applicant was informed of this in writing.  The applicant lives in Echuca in regional Victoria.  His video hearing in Deniliquin was booked for him and, on 20 November 2018, a Tribunal officer spoke to the applicant and confirmed details of the rescheduled hearing.  It was decided to offer him a phone hearing as he lives in a regional area and attending by phone would be more convenient for the applicant.  He was sent SMS hearing reminders on 2 and 8 January 2019.

4. The applicant appeared before the Tribunal by phone on 9 January 2019 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 is satisfied that the holder did not comply with a condition of their visa.

8. 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.

9. Relevantly, condition 8107 applies to all Subclass 457 visas and applied to the applicant’s Subclass 457 visa that is the subject of this review.  It includes the requirement that the visa holder who has satisfied the primary criteria must not cease work with the nominating sponsor for more than 90 days, within which time they may find another approved sponsor. If the visa holder ceases the employment for more than 90 days, they will be in breach of condition 8107.

10. The applicant was informed by the Department by way of a Notice of Intention to Consider Cancellation (NOICC) dated 14 May 2018 that they were considering cancelling his visa and the applicant was invited to respond or comment.  An email response was received on 16 May 2018 from the applicant’s (then) migration agent, Mr Jamie Lingham.  He said that the applicant had been exploited and falsely believed that a nomination application would be made for him and asked for an extension of time.  The applicant was granted an extension of five working days.  On 21 May 2018 the applicant’s Subclass 457 visa was cancelled because he was not the subject of a nomination (or pending nomination application) and the delegate was of the view, having considered all discretionary criteria, that the grounds for cancellation outweighed the reasons for not cancelling the visa. 

11. The applicant was nominated by the Echuca Hotel in the occupation of Cook (ANZSCO 351411).  The nomination submitted by the Echuca Hotel was approved on 12 April 2017.  The applicant was granted a related Subclass 457 visa for four years, from 26 October 2015 to 26 October 2019.  On 31 October 2017, the sponsor notified the Department that the visa holder had ceased employment with them.

12. Department policy clarifies that the purpose of the 90 days provision, relevant to condition 8107(3)(b), is to give the visa holder time to find a new approved sponsor.  The applicant’s visa was cancelled in May 2018, seven months after his employment with his sponsor relating to the Subclass 457 visa had ceased.  At the time of this decision, some 14 months have passed since he ceased working for the sponsor, the Echuca Hotel, and the applicant still does not have a sponsor.  He was granted additional time by the delegate in May 2018 and was also granted additional time by the Tribunal - at the applicant’s request, his hearing was postponed from November 2018 to January 2019 to enable him to find a sponsor.  Notwithstanding the hardships and difficulties the applicant says he has faced, which have been considered, the Tribunal’s view is that he has been given more than a reasonable amount of time to find a new sponsor.

13. The applicant claims, and it is accepted, that he tried to find a new sponsor after his employment ceased with the Echuca Hotel.  However, there is no probative evidence before the Tribunal that the applicant found a new sponsor within 90 days of his employment ceasing.  The applicant ceased employment for a period exceeding 90 days and is therefore non-compliant with condition 8107(3)(b).

14. There has been no claim made or evidence provided that the applicant works in an occupation that exempts him, under condition 8107(3A), from having to continue to work for the sponsor.

15. 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 visa should be cancelled.

    Consideration of discretion

16. 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’.

17. The applicant has provided information to the Tribunal relating to the stress he has been under.  This includes his claim to have been exploited by a previous employer and he was afraid to complain.  The applicant’s mother passed away in September 2018.  He has, since ceasing employment with the Echuca Hotel, not found a new sponsor, despite making attempts to do so.  He feels he has been misled on occasion into thinking that he had secured a sponsorship.  The Tribunal has had particular regard to the applicant’s very detailed statutory declaration sworn on 5 June 2018 relating to his work history and matters relevant to his current visa situation and also to the applicant’s oral evidence given at the Tribunal hearing.

    Purpose of the applicant’s travel to and stay in Australia

18. The applicant gave evidence that he was granted a Subclass 457 visa and shortly after, on 15 December 2015, arrived in Australia to commence work at the Heritage Resort Hotel in Denham, Western Australia (the Heritage).

19. The purpose of the applicant’s stay in Australia is to reside onshore holding a Subclass 457 visa working in an occupation that is the subject of a nomination.  The Tribunal has considered the evidence provided and in comments above.  Since October 2017 the applicant has been residing onshore holding a bridging visa.  He has not, since October 2017, held a 457 visa.  It is accepted that he has made genuine attempts to obtain new sponsorship relating to his 457 visa, but he has not at the time of this decision managed to do so.

20. The applicant is not the subject of a new nomination by an approved sponsor in the nominated occupation.  On the evidence provided, there is no nomination application for him that is pending, has been granted, or has not ceased.

21. For these reasons, the Tribunal is not satisfied that the applicant’s purpose of stay in Australia complies with the Subclass 457 visa conditions that require him to work in the specified occupation for an approved business sponsor. 

22. Notwithstanding the applicant’s attempts to find a new sponsor, from at least October 2017 through to the time of this decision, the Tribunal, on the information before it, gives little weight in favour of the applicant relating to his purpose of stay in Australia.

    Extent of compliance with visa conditions

23. The Tribunal has made the finding that the applicant has been non-compliant with his Subclass 457 visa condition 8107 because he ceased employment with the sponsor for a period exceeding 90 days.

24. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions.  However, the non-compliance with the substantive visa that the applicant previously held and which was to facilitate his stay in Australia is considered to be significant.  No weight in favour of the applicant is given to him on the basis that he has not been non-compliant with other visa conditions.

    Degree of hardship that may be caused to the applicant and any family members

25. The applicant claims that he is suffering hardship and stress due to his visa situation and inability to find a new sponsor.  He has submitted that his daughter who lives in the Philippines is financially dependent on him, particularly relating to her education.  In addition, the applicant provided evidence that his mother, who cared for his daughter, passed away in the Philippines in September 2018.  He said he was placed under additional pressure, due to his financial circumstances, that meant he could not return to his home country to attend his mother’s funeral.  He said, in an email dated 15 November 2018 that he was at that time working for the Caledonian Hotel in Echuca, but that they had indicated to him that they could not sponsor him because they are not a standard business sponsor (which is required before they can nominate someone for a Subclass 457 visa) and the applicant appears to suggest that the Caledonian Hotel had indicated to him that they would find it too expensive to make a nomination application.  In the email, he says that due to these matters he is still looking for a sponsor.

26. The applicant confirmed at the hearing that he has worked for the Caledonian Hotel since July 2018 when he was granted work rights and, for now, is working in a capacity akin to full-time and being paid a salary.

27. The Tribunal has considered the applicant’s situation and the evidence he has provided about his personal and financial difficulties and the financial support he provides to his family in the Philippines.  He ceased employment with his sponsor in October 2017.  It is now 15 months later, a period of which included the applicant having work rights.  He has, since at least July 2018, been able to work and earn income and that is what he has done.  The applicant confirmed at the hearing that he has no family in Australia.

28. It is accepted that some level of hardship may be experienced by the applicant if the visa is cancelled.  However, in the circumstances, the Tribunal gives little weight to this in the applicant’s favour.  He is a citizen of the Philippines, his daughter lives there and, although it is accepted that the applicant may find it difficult to bear the cost of repatriating himself, it is reasonable to think that he may be motivated to find a way to return to his home country and reunite with his remaining family members if the visa is cancelled.

    Circumstances in which the ground for cancellation arose

29. The applicant has worked and been the subject of several nominations in the occupation of Cook, from 2015 through to October 2017.  He continues to work as a Cook while he holds a BVE with work rights.

30. The applicant’s Subclass 457 visa was granted in September 2015 relating to a nomination by Miami Bay Holdings Pty Ltd (the Heritage Resort in Denman) in the occupation of Cook (ANZSCO 351411).   Most recently, the applicant secured a nomination in the occupation of Cook and commenced working at the Echuca Hotel in April 2017.  On 31 October 2017, the nominating business, the Echuca Hotel, informed the Department that the applicant had ceased employment with them on 30 October 2017.  From 31 October 2017, the applicant has not been the subject of a nomination relating to his 457 visa. 

31. The applicant has provided the Tribunal with a statutory declaration sworn on 5 June 2018.  He outlines his work history and includes the following information and claims:

    a.He is a 48 year old citizen of the Philippines.

    b.He received an NOICC sent by the Department in May 2018.

    c.When the applicant was granted his Subclass 457 visa in the occupation of Cook, it related to a nomination by the Heritage and he commenced work there on 16 December 2015.

    d.While working at the Heritage for Mr Des Mathews, the applicant was overworked and underpaid.

    e.The applicant had used Mr Greg Holmsen, CEO of The Philippine Recruitment Company, to obtain the visa and says that Mr Holmsen was not helpful when the applicant told him he was unhappy with his work and pay conditions at the Heritage.

    f.He said that Mr Mathews blamed him for things he did not do and made him do things that were not part of his duties as a Cook, for example, washing dishes - copies of text messages between the applicant and Des Mathews in early 2016 have been provided and, in the Tribunal’s view, indicate that there appears to be some tension in the work relationship between the applicant and sponsor.

    g.The applicant moved to Victoria to find another job and was employed by the Echuca Workers Servicemen’s Club as a cook from April 2016 and says he worked very hard there.

    h.The applicant said that despite his hard work, and also because he thought he might have intimidated the other employees because of his skills and experience, other employees spoke to him rudely and swore at him, and when this was reported nothing was done, so in February 2017 he and the manager agreed that he could resign and she would give him a reference.

    i.In February 2017, the applicant commenced work at the Echuca Hotel – he was hired by David Connelly, the owner.

    j.The applicant says that he worked very hard at the Echuca Hotel but that Mr Connelly did not show appreciation and the applicant was blamed for other people’s mistakes.

    k.The applicant asked Mr Connelly to watch the hotel’s CCTV to see that the things were not his fault, but said Mr Connelly did not watch the CCTV and instead ‘fired’ him on 17 October 2017.

    l.The applicant was stressed and bullied and went to the Fair Work Ombudsman after ceasing employment at the Echuca Hotel, he spoke to Luke Ryan who referred him to a fair work mediator, Christine Scott, who told him that if David Connelly would not mediate that the applicant could file a claim in the Small Claims Court.  The applicant provided the Tribunal with a copy of an email dated 5 June 2018 relating to these matters in connection to his employment with the Echuca Hotel.  In the email it is confirmed that the applicant had advised that he did not wish to delay the mediation process until December 2017 (which was the earliest mediation could take place).  He was told that the request for assistance to the Fair Work Ombudsman would therefore be finalised and the applicant could pursue a claim through the Small Claims Court.  Details of how to do this were provided to the applicant in the email – the applicant confirmed at the hearing that he did not pursue a Fair Work claim or commence action in the Small Claims Court.

    m.The applicant has provided the Tribunal with a letter from John Sweetnam AM, Workplace Relations Advisor, Australian Hotels Association (Vic), dated 21 December 2017 in which Mr Sweetnam finds after looking into the applicant’s claim, essentially, that the applicant was not underpaid by the Echuca Hotel.  The applicant contends that Mr Sweetnam is wrong.  Mr Sweetnam’s letter refers to him having assessed the terms and conditions of the applicant’s employment at the Echuca Hotel and reaching the view that he was employed on a casual basis, full time and, having accessed ‘the hotels payroll system’ the applicant was paid ‘$307 gross in excess of your minimum entitlements for the time that you were employed at the Echuca Hotel’ and that the applicant’s annual leave entitlements were paid when his employment was terminated.

    n.He intends to ‘land a job soon and process a new nomination’.

    o.His mother cares for his daughter back in the Philippines and they are both financially dependent on him (noting that the applicant’s mother subsequently passed away a few months later, in September 2018)

    p.He found a sponsor, the Sicilian in Taree, and borrowed money from a friend to go to Taree.

    q.He commenced work at the Sicilian in Taree and Forster in early 2018

    r.He was paid cash in hand on an hourly basis and given no payslips by the owner, Mr Darzi – the applicant provided screen shots relating to his record of employment and scheduled roster

    s.He was not treated fairly at the Sicilian and was scheduled to work as a dishwasher and had no choice but to do the work

    t.He was discriminated against by another cook at the Sicilian in Forster called David, who is a close friend of the owner.

    u.David was rude to him and swore at him and showed him no respect.

    v.The applicant reported David to the supervisor, Alerti, who he says told him that they should discuss it and resolve the matter.

    w.The applicant was upset and frightened because David had made threats, so he went to the police in Forster where his case was taken by Senior Constable Hayllar (report number provided), who advised him to keep the card he was given in case he needed to ‘file a restraining order’ – the applicant confirmed at the hearing that no further action was taken by him or the police.

    x.The applicant left his job at the Sicilian after this incident.

    y.Mr Darzi, the owner of the Sicilian, said that he would take care of sponsorship for the applicant, but didn’t.

    z.The applicant was referred to George Kotsakis of Point Cook, Victoria, from Migrante Australia and says Mr Kotsakis is helping him with his paperwork and supporting him.

    aa.The applicant says that he has found a company in Echuca that is willing to hire him and sponsor him once his visa is re-instated.

    bb.He has debts of about $6,000, including the amount he borrowed for his skills assessment and placement fee.

1. The applicant claims that he was informed by another migration agent that they had found him a job with a business willing to sponsor him, the Alexandra Hotel in Leura in the Blue Mountains but that they wanted $1,100 up front to process his application and an additional $4,400 once the application was made.  He said that at that point in time he was suffering financial, physical and mental stress and for these reasons did not progress this opportunity.

2. The Tribunal has considered the circumstances in which the ground of cancellation arose and accepts that there appear to have been workplace issues that made the applicant unhappy at the Echuca Hotel.  However, the Tribunal has, individually and cumulatively, considered all of the applicant’s work history and the evidence he has provided, including the applicant’s statement and representations he made to the Fair Work Ombudsman and the letter from Mr John Sweetnam, and is not convinced on balance that the breakdown of employment with the sponsor was beyond the applicant’s control. 

3. The Tribunal gives only very limited weight in favour of the applicant relating to the circumstances in which the ground for cancellation arose.

   Past and present behaviour of the applicant towards the Department

4. The applicant was granted a Bridging Visa E on 18 July 2018, with work rights, and conditions 8207 (No Study) and 8506 (Notify New Address) attached to it.  He gave evidence at the hearing that since he was granted work rights he has worked and continues to work at the Caledonian Hotel in Echuca as a chef.

5. Relating to the 8506 requirement, at the hearing the applicant was asked where he is currently living and said he is living with friends at [address] in Victoria and said that he moved there about three weeks or a month ago.  There is an email on the Tribunal file, dated 15 November 2018, in which the applicant advises of the change of address.  This indicates that he changed address nearly two months ago.  Condition 8506 means that he must report any change of address two working days in advance.  It is encumbent on the applicant to be aware of and comply with his visa conditions.  He was asked at the hearing whether he has informed the Department of this change of address (from Moama to Echuca) and said he has not yet informed the Department of this change of address because he has been preoccupied with worry and stress.  The Tribunal accepts that the applicant is worried and stressed due to his visa situation, and also that he claims to now be intending to inform the Department of his change of address.  Nevertheless, in not doing so in line with condition 8506, the applicant is in breach of this condition.

6. The ground for cancellation arose because of non-compliance with condition 8107.  He is at the time of this decision, on the oral evidence he gave, now also non-compliant with condition 8506.

7. The Tribunal has considered the applicant’s non-compliance with the visa conditions discussed.  Although there is no other evidence before the Tribunal that indicates the applicant has engaged in any behaviour of concern in his dealings with the Department, such as being unco-operative or deliberately uncommunicative, the breaches together are of concern.  The Tribunal gives no weight in the applicant’s favour to his dealings with the Department on the basis that he is again in breach of his visa obligations.

   Consequential cancellations

8. There are no consequential cancellations in this case. 

   Mandatory legal consequences

9. The Tribunal has considered what legal consequences will follow if the visa is cancelled.  The applicant currently holds a Bridging Visa E with work rights.  Provided the applicant complies with his visa conditions up to the time his cancelled visa expires, he will not be subject to detention.  The applicant will be affected by s.48 of the Act if the visa is cancelled, meaning that if he wishes or is entitled to apply for another Australian visa he will, with limited exceptions, need to do so offshore.  It is acknowledged that the applicant may have limited options because of his age, 48.  The 457 visa program is no longer available and the Subclass 482 visa has an upper age limit of 45 except for some limited occupations. 

10. The 457 visa that the applicant held, if it had run its full course, would have ceased in October 2019.  The Subclass 457 visa is a temporary visa and there is no offer or guarantee of additional temporary or permanent visas being granted when a Subclass 457 visa ceases.  The Tribunal gives limited weight to the mandatory legal consequences of cancellation of the temporary visa as they are the intended consequences of legislation.

    Non-refoulement and international obligations

11. The applicant has made no claim, nor has he provided any evidence indicating he cannot return to the Philippines, the country of which he is a citizen, for fear of harm or any other reason other than that he is of limited means and might find it financially difficult.  No weight in favour of the applicant is given on the basis of non-refoulement or international obligations.

    Other relevant matters

12. Despite the applicant’s efforts to secure a new nomination, he is still not the subject of an approved or pending nomination 15 months after he ceased employment with his sponsor, the Echuca Hotel.  The applicant wishes to remain in Australia to work until he can find a sponsor.  The applicant’s claim that he may secure a nomination with the Caledonian Hotel in the future if his visa is reinstated is speculative.

13. The applicant was told at the hearing that the Tribunal was of the view that the ground for the cancellation existed and he confirmed he understood why.  He was told that after the hearing the Tribunal would consider the relevant information and evidence he provided in weighing whether to exercise the discretion not to cancel his visa.

14. Considering the circumstances as a whole, and having weighed the discretionary matters, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Jennifer Cripps Watts
    Member