De Oliveira Junior (Migration)

[2018] AATA 5445

De Oliveira Junior (Migration) [2018] AATA 5445 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose Augusto De Oliveira Junior
Mrs Renata Godeiro Coutinho de Oliveira

CASE NUMBER:  1811328

HOME AFFAIRS REFERENCE(S):           BCC2017/2999103

MEMBER:Denise Connolly

DATE:16 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 16 November 2018 at 1:43pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – no response to s 359A letter – not entitled to appear before the Tribunal – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – resigned due to bullying, underpayment, and work-related stress and depression – unable to secure new sponsorship – purpose of a Subclass 457 visa – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40
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 13 April 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 first named applicant (the applicant) ceased employment with his sponsor and therefore breached condition 8107(3)(b). 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 applicant. The second named applicant’s 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 applicant’s visa 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 the second named applicant.

4. On 12 October 2018 the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act, inviting comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the applicant’s sponsorship by Ooooby Pty Ltd and the grant of the Subclass 457 visa on 1 April 2015. The applicant was informed that his Subclass 457 visa was subject to condition 8107 - work restriction which required in part that he 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 applicant was informed that the Tribunal had information indicating he ceased being employed by his sponsor on or before 24 January 2017 and he had therefore not worked for his sponsor for more than 90 consecutive days as at the date the delegate cancelled his visa. The Tribunal informed the applicant that there was no information to indicate that he had recommenced employment with his sponsor and recent checks indicated that there were no new relevant business nominations approved in respect of the applicant since his visa was cancelled in April 2018. The Tribunal explained the relevance of this information and the consequences. The applicant was also invited to provide further information in relation to factors that would be taken into account if the Tribunal found that there was a ground to cancel his Subclass 457 visa.

5. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 26 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicants have not provided the response or comments, or provided information, within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal is satisfied that the invitation to comment and provide information was correctly sent to the email address provided by the applicants in the review application form. The applicant has not informed the Tribunal of any changes to his email address. The Tribunal also notes that the email enclosing the invitations has not been returned to sender as undeliverable. The Tribunal is satisfied that the applicants were properly informed that a non-response may result in the Tribunal proceeding to a decision on the information before it. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

8. 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

9. 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.

   Information before the Tribunal

10. The Department sent to the applicant a notice of intention to consider cancellation of the visa under s.116 on 3 April 2018. There is an email dated 9 April 2018 on the Department’s file from the applicant indicating that he was not aware that the visa was still valid because he had quit the job a while ago and he understood the Department was notified of his resignation. He indicated that he was in the process of changing sponsors but there had been a few issues with a new nomination application. He indicated that he had huge issues with Ooooby Pty Ltd where he was expected to work overnight and overtime without being paid. He felt bullied and mistreated. He was tricked into transferring his ownership of a refrigerated van to the sponsor and claimed that he had lost everything. He could not lodge a claim at Fair Work because the value was over $20,000. He has been dealing with depression. He is a qualified Transport Manager and has been working in the industry for years. He and his wife were waiting for a new visa so that she could continue her studies in Childcare and Early Childhood Education and take the next step in her professional education. He indicated that he would be having a meeting with a new sponsor to apply for a new nomination.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted the visa on 1 April 2015 for the purpose of filling a skills shortage to work in Australia for an approved sponsor, Ooooby Pty Ltd in a skilled occupation for which he was nominated to work. The delegate records that the applicant ceased employment with the sponsor on or before 24 January 2017. The sponsor notified the Department that the applicant had ceased his employment. There is no evidence before the Tribunal to indicate that the applicant returned to that employment. Therefore the Tribunal is satisfied the applicant has not worked for the sponsor for more than 90 consecutive days as at the date of the decision to cancel the visa. There is also no evidence before the Tribunal to indicate the applicant is the subject of a new relevant business nomination that has been approved. The Tribunal notes that the applicant was provided with this information in the s.359A invitation sent on 12 October 2018.

12. The applicant provided documentation to the Tribunal when making the review application in May 2018. He provided a written submission which explains why he decided to cease his employment with the sponsor. He indicated that before he commenced working with the sponsor he worked as a sole trader for the sponsor for two days a week. He had a refrigerated van which he had financed. He had relevant experience in Brazil and he asked the sponsor if they would be interested in sponsoring him as a Transport Manager. They agreed to do this but he had to continue driving for his own customers which would then be charged through the sponsor. Also they wanted the ownership of the van transferred. The agreement was that when he applied for permanent residence he would get everything back, such as the van, his customers and the profit made. He transferred ownership of the refrigerated van to the sponsor. The applicant claimed that he was working about 70 hours, six days a week but getting paid for only 38 hours. He raised this with his sponsor and asked why he was not paid for overtime and night shifts. At the time the sponsor was paying other employees for overtime. The sponsor said that he would address this issue and he started being paid for all hours worked but was not repaid for the previous unpaid work. He then felt that the sponsor was constantly making comments about his salary and how he was the highest-paid in the business. There were changes in work arrangements and the business started losing customers. He then was given less than 38 hours a week work. The sponsor stated taking hours from his annual leave to make up for the 38 hours. He considered this to be very unfair as he lost his holidays. He also received phone calls and text messages from the sponsor at any time of day and night. He felt that he had no life out of work, no weekend and no free time because he was always been called and texted. He also felt bullied by the sponsor who was at times rude. He was expected to drive at night after his sleep had been interrupted. There were changes in the workplace when the sponsor when on holidays. The people who took over the management of the business had no experience. There were a lot of mistakes and a lot of blame. By the time the sponsor return from holidays the applicant had been diagnosed with work-related depression. He felt that he was being blamed for the changes that had affected the business.

13. The applicant explained that the sponsor in fact had none of its own vans or cars. All deliveries were done by a courier company, Fastway, and the applicant used his refrigerated Toyota Hiace which he financed under his name. When he joined the sponsor it was agreed that the sponsor would pay the instalments for the vehicle by transferring the money to his bank account and he would make the payments. The sponsor then said that because they were paying the finance the vehicle should be in their name. He transferred the van to the sponsor but not the financial obligation. He was persuaded to do this by the sponsor. There was another vehicle purchased in the sponsor’s name but everyone knew that the van was in fact the applicant’s, bought with money from his work under a verbal agreement. Ultimately the sponsor said that both vehicles belonged to him and the applicant has been left with nothing.

14. The applicant provided samples of invoices for transport services he provided in March and April 2015 demonstrating that while customers were billed by the sponsor, the payments were made to the applicant. He also provided evidence that he has a licence from the New South Wales Food Authority to transport meat products. He provided documents relating to the purchase of the refrigerated van.

15. The applicant believes, because of mistreatment by the sponsor, he had no option but to quit. His health was suffering, particularly his depression. After he ceased employment with the sponsor he found another sponsor within 90 days, a meat company, Melrina, however their nomination application was refused on 9 January 2018. He was not informed of this for two months. This left him only 21 days to make another application which he could not do.

16. The applicant has provided records of communication apps used by his sponsor’s workplace. He has highlighted and annotated parts of the communication where he believes it is demonstrated that he has been blamed for failures in the business and that he was bullied, resulting in his depression. There is evidence that another employee felt bullied. The applicant has also provided a printout of the sponsor’s Payroll Activity Details for the period 23 March 2015 to 8 December 2016 regarding the applicant. That report shows that there were periods when the applicant was underpaid and that there were several weeks when he worked over 38 hours.

17. The applicant also provided a medical certificate dated 22 November 2016 recording that in his doctor’s opinion he had work-related anxiety and was drinking excessively. He also provided a copy of his letter of resignation dated 24 January 2017.

    Does the ground for cancellation exist?

18. 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. This condition requires among other things that in circumstances where the visa is a Subclass 457 visa that was granted on the basis that the holder met the requirements of cl.457.223(4), if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

19. On the basis of information on the Department’s file, included in the s.359A invitation sent to the applicant on 18 October 2018, the Tribunal finds the applicant was granted the Subclass 457 visa on 1 April 2015 having been sponsored by Ooooby Pty Ltd to work in the nominated occupation Transport Manager. The Tribunal is satisfied his Subclass 457 visa was subject to condition 8107 which required in part that he must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.

20. On the basis of the applicant’s own written submission, his letter of resignation and the Departmental records the Tribunal is satisfied the applicant ceased employment with the sponsor on 24 January 2017. There is no evidence before the Tribunal to indicate that he returned to that sponsored employment. The Tribunal is satisfied in those circumstances that the applicant ceased his sponsored employment and the period that he has ceased his employment as at the date his visa was cancelled, on 13 April 2018, exceeded 90 consecutive days. The Tribunal finds therefore that the applicant has not complied with condition 8107(3)(b).

21. 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 visa should be cancelled.

    Consideration of discretion

22. 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’.

23. The Tribunal has taken into account all of the evidence before it. The applicant provided information to the Tribunal, relevant to these factors, in May 2018. The Tribunal notes that the applicant was invited in October 2018 to provide information in relation to the factors addressed below. However he did not respond to that invitation.

24. With regard to the purpose of the applicant’s travel and stay in Australia, the Tribunal accepts that the applicant, at least until May 2018, intended to remain in Australia to work on skilled employment in the transport industry. It notes that he sought sponsorship with Melrina however the related nomination application made by Melrina was unsuccessful. There is no evidence before the Tribunal to indicate the applicant is currently the subject of an approved nomination. There is also no evidence before the Tribunal to indicate that the applicant is currently sponsored or working in skilled employment. The Tribunal is of the view, given the purpose of a Subclass 457 visa, to fill a skill shortage in Australia, that it is significant that there is no evidence to suggest that the applicant is currently employed in skilled employment by an approved standard business sponsor. The Tribunal notes that the applicant indicated to the Department in April 2018 that he seeks to continue to hold a visa because he and his wife wish to remain in Australia so that his wife can pursue her studies in Childcare and Early Childhood Education. The Tribunal accepts that it may be the case that the applicant’s wife still wishes to pursue those studies. However this purpose is somewhat different to that of the Subclass 457 visa. Overall the Tribunal is not satisfied that there is a compelling need for the applicant to remain in Australia.

25. With respect to the extent of compliance with the visa conditions, on the basis of the medical evidence provided and the applicant’s written submissions the Tribunal accepts that the applicant’s stress and depression, at least in part, led to his decision to cease his employment with the sponsor on 24 January 2017. The Tribunal gives this some weight in the applicant’s favour. There is no evidence to suggest that there has been non-compliance with other visa conditions. However the Tribunal notes that there is no evidence indicating that since the applicant ceased his employment with the sponsor he has been employed in skilled employment by a standard business sponsor.

26. On 18 October 2018 the Tribunal invited the applicant to provide current information about the degree of hardship that may be caused by a visa cancellation. The applicant did not respond. The applicant has made reference to financial obligations he has had in relation to the purchase of a vehicle in Australia. However there is no current information before the Tribunal in relation to any debts owed by the applicant. While the Tribunal notes that the applicant has indicated that in the past he has suffered depression and anxiety, and that he wishes to remain in Australia so that his wife can continue her studies here, on the basis of the evidence before it, the Tribunal is not satisfied the applicant would suffer any significant hardship if the visa is cancelled.

27. With respect to the circumstances in which the ground for cancellation arose, the Tribunal accepts that the applicant ceased his employment with the sponsor because he felt bullied and overworked. On the basis of the Payroll Activity Details document he provided the Tribunal accepts that the applicant was unpaid for numerous hours during the period April 2015 to December 2016 while employed by the sponsor. It has taken into account the information provided recording the communications between the applicant and the sponsor which resulted in the applicant feeling bullied and blamed for work-related issues. The Tribunal accepts that the relationship between the applicant and his sponsor broke down to the extent that the applicant felt he could no longer continue to work for the sponsor. However it notes that since January 2017 when he ceased skilled employment with the sponsor he has not been able to secure sponsorship by a standard business sponsor who has been able to have a nomination application approved.

1. With respect to the applicant’s past and present behaviour, the Tribunal notes that the delegate records that there is no evidence that the applicant has been uncooperative with the Department.

2. The Tribunal accepts that there would be a consequential cancellation for the applicant’s wife, the second named applicant, under s.140 of the Act if the visa is cancelled. It notes that in April 2018 the applicant informed the Department that his wife wished to remain in Australia so that she could continue her studies. However it also notes from the delegate’s decision record that his wife’s visa was granted on the basis of being a member of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status.  For these reasons, the Tribunal gives limited weight to the consequential cancellation of his wife’s visa.

3. The Tribunal has also had regard to the mandatory legal consequences of a cancellation. The applicant is currently holding a bridging visa E. The Tribunal is satisfied he will only be subject to detention if he remains in Australia after his last held visa expires. While the applicant will be affected by s.48 of the Act if the visa is cancelled, and will not be able to apply for certain visas onshore, he will have the option of applying for another skilled visa offshore if he is able to secure sponsorship and a nomination application is lodged. While taking these factors into account the Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation. The applicant has not indicated that any international obligations would be breached as the result of a cancellation.  

4. The Tribunal has considered and weighed up all of the relevant evidence and circumstances in this case. The Tribunal acknowledges that the applicant felt compelled to resign from his skilled employment because he felt bullied, was underpaid and suffered work related anxiety and depression. However it notes that since he resigned in January 2017 he has not been able to secure sponsorship to be employed in skilled employment by an approved standard business sponsor. There is no evidence to suggest he is the subject of an approved nomination or that he will be the subject of an approved nomination in the foreseeable future. The Tribunal accepts that the applicant, at least in May 2018, wanted to remain in Australia in part to facilitate his wife’s study here. However the Tribunal is of the view the purpose of the Subclass 457 visa is to fill a specified skilled position. While there may still be some financial obligations in relation to loans he took out to purchase vehicles, the Tribunal does not have current evidence before it in relation to that issue indicating he will suffer severe financial hardship. On the evidence before it, the Tribunal is not satisfied the applicant will suffer significant hardship, if the visa is cancelled. The Tribunal accepts that the applicant has generally complied with visa conditions and there have been no concerns regarding his conduct. However the Tribunal gives significant weight to the fact that the applicant has not been able to fulfil the purpose of the Subclass 457 visa since January 2017, and is still not the subject of an approved nomination since he ceased working for Ooooby Pty Ltd. It takes into account the consequential cancellation for his wife and the mandatory legal consequences. However it is satisfied that if the visa is cancelled, and another sponsored skilled employment opportunity arises, the applicant will be able to make a visa application offshore if he is eligible.  

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

   DECISION

6. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

7. The Tribunal has no jurisdiction with respect to the second named applicant.

   Denise Connolly
   Member