FABER STEYER (Migration)

[2019] AATA 4138

FABER STEYER (Migration) [2019] AATA 4138 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ricardo FABER STEYER
Mrs Laura FRANCO MARTINS

CASE NUMBER:  1901337

HOME AFFAIRS REFERENCE(S):           BCC2017/2824062

MEMBER:Mr S Norman

DATE:9 September 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 09 September 2019 at 11:55am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for over 90 days – new nomination refused – genuine attempt to find new sponsor – support letters provided – no jurisdiction for second applicant – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 348
Migration Regulations 1994 (Cth), Condition 8107, r 2.72

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 January 2019 made by a delegate of the Minister for Home Affairs 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). 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 found to have breached condition 8107. 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 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. Be that as it may, by email dated 3 September 2019 the applicant advised the Tribunal that he was no longer in a relationship with his previous partner (Laura Franco Martins - DOB: 20/10/1986). He said that his previous partner had been granted a Subclass 457 as his de facto partner, and he now requests that she be removed as his dependant.

5. The first named applicant (Mr Ricardo FABER STEYER) appeared before the Tribunal on 3 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Din Haikin (the applicant’s new Subclass 457 visa sponsor). 

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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).

9. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 29 July 2016 (stay period – 29 July 2020). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 4 January 2019,[1] the applicant was advised there may be grounds to cancel his visa under s.116(1)(b); as it appeared the applicant 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 – from folio 13.

10. In the NOICC the delegate noted that the applicant’s standard business sponsor was Venues of Australia (Star Room) P/L, ATF Venues of Australia (Star Room) Trust (the sponsor). Their nomination was approved on 29 July 2016 and the applicant was nominated for the position of a Cafe or Restaurant Manager (ANZSCO: 141111). The delegate noted the nominated occupation was not one specified in a relevant instrument and referred to in condition 8107(3A), as exempt from having to comply with the requirements of condition 8107(3)(a)(ii). Therefore, while the applicant held the Subclass 457 visa he could only lawfully work in Australia for either the sponsor or an associated entity.

11. The delegate then advised that the Department received written notification from the sponsor advising that the applicant had ceased employment with them effective 13 April 2017.[2] In the NOICC, the delegate also noted that a new nomination approval application (relating to the applicant) was lodged by Cafe Shenkin P/L on 11 May 2017 (approximately 28 days after he ceased work with his initial sponsor). That application also nominated the applicant in the occupation of a Cafe or Restaurant Manager (ANZSCO: 141111). However, this (new) nomination application had been refused on 19 December 2018, as the delegate was not satisfied the new sponsor met r.2.72(10)(f) of the Regulations (genuine position).

    [2] Department – folio 1. 

12. At hearing, the applicant explained he had worked for his former sponsor (Venues of Australia (Star Room) P/L, ATF Venues of Australia (Star Room) Trust), for approximately 18 months, but he had ceased work with them as the business premises from which they operated, and where he had worked, was ‘pulled down’ in order to ‘build a new hotel’.

13. That being said, the delegate advised the applicant that it appeared they had ceased employment with their approved sponsor for a period exceeding 90 consecutive days. Further, it therefore appeared the applicant’s visa may be cancelled by virtue of s.116(1)(b), as the applicant was in breach of condition 8107 (and in particular 8107(3)(b)).

14. The applicant responded to the NOICC by letter of 4 January 2019[3] (and 11 January 2019[4]). The applicant did not agree there were grounds to cancel the visa.[5] The applicant believed they had met the criteria for their Subclass 457 visa. However as did the delegate, the Tribunal notes that when the applicant was granted the visa on 29 July 2016, he received notification outlining the requirements and conditions attached to and arising from that visa. He was advised that if his employment with the sponsor ceased, then within 90 days he must:

    ·     find another employer who was willing to nominate him

    ·     be granted another type of substantive visa

    ·     make appropriate arrangements to depart Australia

    [3] Department – from folio 24.

    [4] Department – from folio 22.

    [5] Department – folio 24.

15. The applicant believed he had met the requirement to “find another employer who is willing to nominate him” on 11 May 2017 - which is the date a new nomination application was lodged by Cafe Shenkin P/L. That application was made 28 days after the applicant had ceased employment with his former sponsor (Venues of Australia). The applicant claimed they assumed their new nomination approval/visa application would be finalised not long after their cessation of employment with their former sponsor.

16. The applicant also said they were a diligent professional who was committed to perform to the highest of their ability in the business within which they were engaged. He said he was a respected social citizen who complied with the law.[6] It was not his intention and neither was it from a lack of attention, which gave rise to the breach of the visa condition.

    [6] Department – from folio 24.

17. In their decision, the delegate noted the applicant had reviewed various sources of information including all letters sent to him by the Department of Home affairs; the Migration Act 1958 – including Division 3A - Sponsorship; and the Department of Home Affairs website. The applicant had not been able to locate information that could provide him (a Subclass 457 visa holder), with further options in a situation similar to his own.[7]

    [7] Department – from folio 24.

18. However, based on the information before them, the delegate was satisfied the applicant’s nominated occupation was not exempt, that the applicant had ceased employment with the sponsor for a period exceeding 90 consecutive days, that they had therefore breached condition 8107(3)(b), and that his visa may be cancelled pursuant to s.116(1)(b) of the Act.

19. Based on the evidence before me, and as stated at hearing, the Tribunal may find that the same material could satisfy me (and now does satisfy the Tribunal) that there are grounds to consider to cancel his Subclass 457 visa.

20. For these reasons, the Tribunal is satisfied that 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

21. 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’.

22. Regarding the purpose of the Brazil citizen applicant’s travel to and stay in Australia, the Tribunal accepts the applicant initially travelled to and remained in Australia for the purpose for which his Subclass 457 visa was granted. The lodging of a second Subclass 457 visa application and nomination approval applicant (refused on 19 December 2018 for not meeting r.2.72(10)(f)), indicated the applicant had continued to intend to remain in Australia for the purpose of work. However, the purpose of the Subclass 457 visa is to allow a person to travel to and remain in Australia to work for an approved sponsor, in circumstances where there was no Australian permanent resident or citizen who could undertake that work. Therefore, the purpose for which the applicant’s Subclass 457 visa was granted, had ceased. 

23. At hearing, the applicant said his brother and sister in law resided in Australia (on Temporary Student visas), but his (now separated) mother and father continued to reside in Brazil. In the circumstances, and after considering all the accepted evidence herein, the Tribunal is not satisfied the applicant has a compelling need to travel to or remain in Australia.

24. Regarding the extent of compliance with visa conditions, the Tribunal accepts the applicant ceased work with his former sponsor on 13 April 2017. The applicant does not now hold an approved Subclass 457 nomination and has not been employed in an approved nominated position for more than 90 days. The second (Subclass 457) nomination approval application was lodged on 11 May 2017, but that had been refused on 19 December 2018. The applicant does not have an approved nomination for the purpose of obtaining a second Subclass 457 visa.

25. As did the delegate, the Tribunal notes the applicant lodged letters of support from friends and employers. One of these confirmed they had seen the applicant working with his new sponsor, and that (words to the effect) the applicant was professional in his work ethic. However, the delegate noted this indicated the applicant had been working with the newly proposed sponsor without an approved nomination and had therefore not complied with condition 8107(3)(a)(i). The delegate was satisfied the applicant should have been aware this was a further breach of visa conditions. For instance the delegate noted that the Subclass 457 visa grant letter dated 29 July 2016, had advised the applicant:

    This visa allows you to change employers as long as they are approved as a standard business sponsor under the 457 program, and have an approved nomination with you identified as the nominee.

26. However, and as noted above, the applicant said they were a diligent professional who had lodged a new nomination approval/visa application around 28 days after they had ceased work. Notwithstanding the breach, the Tribunal is satisfied this indicated a meaningful attempt on the part of the applicant to comply with visa conditions.

27. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the applicant said that he had resided in Australia for some six years and had now “integrated … into Australian culture through music, by collaborating with bands and in symbols through unpaid work”.

28. When discussed at hearing, the (almost 35 year old) applicant believed (words to the effect) he would have to start again in Brazil. He had not completed any tertiary studies in Brazil but he had managed to obtain various tertiary qualifications in Australia. By migration agent submission dated 2 September 2019,[8] the agent conceded that grounds for cancellation existed, however and amongst other things, the migration outcome for the applicant may follow that of their present business sponsor. With the above submission was also lodged evidence that the applicant completed the following courses in Australia:

    ·     Diploma of Management – 27 January 2016[9]

    ·     Certificate II in Business – June 2013[10]

    ·     Certificate III in Business – August 2013[11]

    ·     IELTS test – January 2016[12]

    ·     A curriculum vitae[13]

    [8] Tribunal – from folio 53.

    [9] Tribunal – folio 57.

    [10] Tribunal – folio 56.

    [11] Tribunal – folio 56.

    [12] Tribunal – folio 55.

    [13] Folio 54.

29. The applicant had appeared to be attempting to develop his skills in Australia. That said, the Tribunal proposes to accept the applicant would suffer some hardship if his visa is cancelled, for reasons that include he would have to ‘start again’ in Brazil.

30. Regarding the circumstances giving rise to the ground for cancellation, the evidence before the Tribunal included that the applicant ceased employment with his (prior) approved sponsor on 13 April 2017. As noted herein, that was because the business premises where the applicant worked, were ‘pulled down’ in order to ‘build a new hotel’ and the applicant was ‘let go’. After discussing this with him at hearing, the Tribunal will accept this is correct. The applicant then was subject to a second nomination approval application, lodged within 28 days of ceasing work for his former sponsor. Notwithstanding this constituted a breach of the terms of his former Subclass 457 visa, the applicant said he was ‘not trained in law’, and as said above, the Tribunal accepts this constituted a meaningful attempt on the applicant’s part to remain lawful in Australia. However, as stated herein, the purpose of the temporary worker visa is to allow for noncitizens to travel to and remain in Australia for the purpose of filling a genuine skills shortage within the Australian community.

31. Next, there is no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

32. Next, if the applicant’s visa is cancelled, the visa of his ex-partner would also be cancelled. That is because if his visa is cancelled, this would result in the automatic cancellation by operation of law under s.140 of the Act, of the visa held by his ex-partner.

33. 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.

34. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.   

35. That being said, the applicant is now the subject of an approved (Subclass 457) business nomination application dated 9 September 2019 (see AAT # 1900089).  Though the Tribunal is satisfied the applicant breached the conditions attached to his prior Subclass 457 visa, I am also satisfied he made meaningful attempts to remain lawful in Australia. I also accept he is highly regarded by his new sponsor. In the circumstances, the Tribunal is not satisfied it is appropriate to exercise the discretion to cancel the visa in this case.

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

    DECISION

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

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

    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.