Filippidis (Migration)

[2018] AATA 5059

Filippidis (Migration) [2018] AATA 5059 (30 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pantelis Filippidis

CASE NUMBER:  1606014

HOME AFFAIRS REFERENCE(S):         BCC2016/1247964

MEMBER:Louie Hawas

DATE:30 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2018 at 6:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment with nominating sponsor – attempted to seek a new sponsor within 90 days –exploring business opportunities – intention not consistent with the purpose of the visa – mental health issues – hardship – Australian partner – prefers Australia – uncorroborated fraud allegations against the applicant – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 116, 140, 348, 359AA, 359A, 378
Migration Regulations 1994 (Cth), r 2.12 Schedule 2 Condition 8107 Schedule 4 PIC 4013

CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 14
Rani & Ors v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1979) 2 ALD 634
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Summary

1. The applicant is a 43-year-old man from Greece. He arrived in Australia alone on a visitor visa on 17 November 2011. At the time, he was married with two children. His wife and children remained in Greece while he came to Australia on the visitor visa. His wife and children joined him in Australia in February 2012. His wife to came to Australia on a student visa with their two children, and he became a secondary student visa holder. He lived in Australia with his family on the student visas until 19 April 2013. On that date, the department granted him a Subclass 457 (Temporary Work - Skilled) visa for four years on the sponsorship of Hospitality Furniture Concepts Pty Ltd (Hospitality Furniture). His wife and children were granted 457 visas also. His nominated occupation was as a cabinet maker. [1]

   [1] Delegate’s decision record dated 19 April 2016, which the applicant gave the Tribunal in this review. The applicant also gave this during the hearings.

2. The applicant’s visa was subject to condition 8107(3)(b), which provided that if he ceased employment with his nominated employer, the period during which he ceased employment must not exceed 90 consecutive days. [2]

   [2] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the applicant’s visa was subject to condition 8107.

3. On or about 14 April 2015, the department was notified that the applicant had ceased employment with Hospitality Furniture on or about the date of notification. By notice of intention to consider cancelling his visa dated 31 March 2016, the department notified the applicant that there appeared to be grounds to cancel his visa under s. 116(1)(b) of the Migration Act 1958 (Act) for breach of condition 8107(3)(b), and it invited the applicant to comment on the grounds for cancellation and give reasons why his visa should not be cancelled. The applicant responded to the notice on 18 April 2016.[3]    

   [3] Delegate’s decision record.

4. By a written decision dated 19 April 2016, the delegate cancelled the applicant’s visa under s. 116(1)(b) on the grounds that the applicant ceased employment with Hospitality Furniture on or about 14 April 2015, and that he did not return to work for that company (or an associated entity) in the following 90 consecutive days. Accordingly, the delegate concluded that the applicant breached condition 8107(3)(b) of his visa. The delegate then concluded that the proper exercise of her discretion favoured cancelling the applicant’s visa. But for its cancellation, the applicant’s 457 visa would have expired on 19 April 2017.

5. On 28 April 2016, the applicant applied to this Tribunal for a review of the delegate’s decision.

6. On 28 March 2017 and 20 September 2017, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Zainab Bayatly, who is the applicant's partner. The Tribunal hearings were conducted with the assistance of an interpreter in the Greek and English languages.[4] The applicant was represented by his solicitor at both of those hearings.

   [4] The review first came before the Tribunal for hearing on 4 November 2016 but the hearing was adjourned at commencement of the hearing on the applicant’s request. This is taken up further below.

7. In this review, the Tribunal must decide whether the ground for cancellation under s. 116(1)(b) has been made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

8. For the following reasons, the Tribunal:

   (a)Finds the ground for cancelling the applicant’s visa under s. 116(1)(b) has been made out;

   (b)Considers the proper exercise of its discretion favours cancelling the applicant’s 457 visa; and

   (c)Affirms the delegate’s decision to cancel.

   Procedural history

9. The Tribunal first invited the applicant to attend a hearing on 4 November 2016 by letter to him (sent to his then migration agent) dated 17 October 2016. The Tribunal did not receive a response to that invitation from the applicant or his then migration agent.

10. The applicant attended the hearing on 4 November 2016 but his then migration agent did not attend with him. On the day, the applicant stated that his agent had told him she would not attend the hearing and that he could attend alone. However, he did not want to proceed with the hearing on his own and wanted his agent there with him. The applicant also notified the Tribunal at the hearing for the first time that he required a Greek interpreter.[5]

    [5] The application lodged on the applicant’s behalf did not notify of the need for an interpreter and the Tribunal did not receive a response to its hearing invitation notifying of the need for a Greek interpreter.

11. The Tribunal adjourned the first hearing for 15 minutes so that registry staff could contact the applicant’s then migration agent to ascertain whether she would attend, and so that the applicant could decide how he wanted to proceed. During the adjournment, the applicant’s then migration agent told the Tribunal’s registry staff that she had a dispute with the applicant about fees and she did not act for him any longer.

12. On the hearing resuming on 4 November, the Tribunal relayed to the applicant what his then migration agent had told registry staff, and it asked the applicant how he wanted to proceed. He said he wanted a short adjournment. He said he did not want to proceed with a hearing without a migration agent. The Tribunal told the applicant it would grant him a short adjournment to resolve the apparent dispute with his migration agent or retain a new one. The Tribunal adjourned the hearing to a date to be advised.

13. By letter to the applicant dated 17 November 2016, the Tribunal invited him to attend the resumed hearing on 23 November 2016. The Tribunal sent the letter to the applicant’s then migration agent. By that time, the applicant had not notified the Tribunal that he had appointed a new agent or of a new address for the service of documents.[6]

    [6] Also, registry staff spoke to the applicant by telephone on 17 November 2016 during which conversation the applicant said he could attend a hearing on 23 November.

14. The applicant did not attend the hearing on 23 November. He did not notify the Tribunal before 23 November that he would not be attending the hearing that day. On 23 November, the Tribunal dismissed the review by reason of the applicant failing to attend the hearing. A copy of the Tribunal’s reasons for decision were sent to the applicant.

15. The Tribunal received an email from the applicant on 24 November 2016 stating that he did not attend the hearing because he was suffering from symptoms of influenza and headaches. He asked for a new hearing date in the following week. The applicant did not submit any medical evidence with his email.

16. On 2 December 2016, the Tribunal received a further email from the applicant’s new migration agent applying formally to reinstate his review on the grounds the applicant was too ill to attend the hearing on 23 November. The new migration agent submitted a doctor’s certificate dated 1 December 2016 supporting the reinstatement application.

17. By written decision dated 3 January 2017, the Tribunal reinstated the applicant’s review.

18. Two hearings followed the review being reinstated; the first on 28 March 2017 and the second on 20 September 2017. The first of those hearings was adjourned to allow the applicant further time to comment on the validity of a certificate the department had issued under s. 375A of the Act, and to comment on or respond to information, the particulars of which the Tribunal gave to the applicant at that hearing orally under s. 359AA. By letter dated 4 August 2017, the Tribunal also gave particulars of the information to the applicant in writing under s. 359A of the Act and invited the applicant to comment on or respond to the information. The information is described in more detail below.

    Does the ground for cancellation exist?

19. Under s.116 of the Act, the Minister or the Tribunal may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those include the ground set out in s.116(1)(b), which provides that the minister may cancel a visa if its holder has not complied with a condition of the visa.

20. Here, the applicant’s visa contained condition 8107(3)(b). It provided that the applicant must not cease employment with his nominated employer (or an entity associated with the employer) for more than 90 consecutive days.

21. During the hearings, the applicant said:

    (a)He ceased working for Hospitality Furniture in mid-April 2015;

    (b)He did not return to work for Hospitality Furniture in the following 90 consecutive days;

    (c)The delegate had lawful grounds to cancel his 457 visa; and

    (d)He appealed to the Tribunal’s discretion to set aside the delegate’s cancellation decision.

22. On the evidence before the Tribunal it finds that:

    (a)The applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b);

    (b)The applicant ceased employment with Hospitality Furniture in mid-April 2015, and the period during which the applicant subsequently remained unemployed exceeded 90 consecutive days; and

    (c)The applicant breached condition 8107(3)(b) of his 457 visa.

23. Accordingly, grounds for cancelling the applicant’s 457 visa under s. 116(1)(b) have been made out.

24. As those grounds do not require mandatory cancellation of the applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    The discretion

25. The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[7] However, PAM3 constitutes a useful starting point for the exercise of the discretion.

    The purpose of the applicant’s travel to and stay in Australia

    [7] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.

26. The applicant initially came to Australia on a visitor visa in November 2011. From February 2012, he remained in Australia on a secondary student visa. At the time, his wife was in Australia on a student visa studying English at La Trobe University.[8] On 19 April 2013, the applicant was granted his 457 visa on the nomination of Hospitality Furniture. His nominated occupation was as a cabinet maker. Accordingly, the purpose of his stay in Australia from 19 April 2013 was to work for Hospitality Furniture as a cabinet maker. If it was not cancelled on 19 April 2016, his visa would have expired on 19 April 2017. The applicant now remains in Australia on a Bridging Visa E pending the outcome of this review. The applicant said in evidence that the bridging visa does not carry work rights. As things have turned out, he has remained in Australia for the life of his 457 visa had it remained in force.

    [8] The applicant gave this evidence at the hearings.

27. During the hearings, the applicant said that about a fortnight after he ceased working for Hospitality Furniture in mid-April 2015, a builder who operated a joinery, whom he had met during his time at Hospitality Furniture, offered him work as a cabinet maker and promised to nominate him for a 457 visa. The builder traded under the name ‘I2’. The applicant said that I2 made good on its promise and applied to nominate him in May or June 2015. That nomination application was subsequently refused.

28. That evidence finds support in the department’s ICSE records. Those records reveal that I2 Interiors Pty Ltd applied to nominate the applicant in about mid 2015 and that application was refused on 28 August 2015 (before his visa was cancelled).

29. The applicant also said that after I2’s application to nominate him was refused, a company called ‘Tekton’ applied to nominate him for a 457 visa. The applicant said that company also operated a joinery. That application was refused in about May 2016 because Tekton did not provide sufficient documents to the department.

30. That evidence again finds support in the department’s ICSE records. Those records reveal that Tekton Group Pty Ltd applied to nominate the applicant in 2016. Tekton made that application before the applicant’s visa was cancelled on 19 April 2016 because the applicant’s response dated 18 April 2016 to the department’s notice of intention to cancel the applicant’s visa referred to the Tekton application, and it asked the department to withhold a decision until after the Tekton application had been determined.  The department’s ICSE records do not reveal precisely the fate of that application but it is plain the application was never granted. The applicant did not submit to the Tribunal any documents about either the A2 or Tekton applications.

31. At the first substantive hearing on 28 March 2017, the applicant submitted a letter from Novare Fitouts Pty Ltd dated 28 March (the day of the hearing). The letter provided that Novare specialised in custom-made cabinetry. In the letter, Novare attested to the applicant’s skill and experience as a cabinet maker and stated that it would like to sponsor the applicant for a 457 visa. At that hearing, the applicant’s solicitor said that Novare offered to sponsor the applicant a couple of weeks before the hearing. Novare was yet to gain approval as a standard business sponsor. It was in the process of preparing an application for such approval. The application would be made in the following week or so. And the applicant would give the Tribunal a copy of the Novare standard business sponsorship application and the nomination application once they had been lodged. Subsequently, neither the applicant nor his solicitor gave the Tribunal a copy of any such applications.

32. Come the next hearing on 20 September 2017, the applicant said that Novare was yet to nominate him for a 457 visa (or for some similar visa). He said the owner of that company was overseas and that he had not yet had a chance yet to bring the nomination application. Novare has not since applied to nominate the applicant for any visa.

33. During the hearings, the applicant said he wanted to remain in Australia, and he cited several reasons for wanting to stay. He said generally he had been in Australia for six years and considered Australia now to be his home.

34. More specifically, he said he wanted to work in Australia. He wanted to stay to explore seeking a nomination for a fresh 457 visa (or similar work visa).  

35. He said also he wanted to remain with his new partner in Australia Zainab Bayatly. He said that shortly after arriving in Australia in November 2011, his wife began to complain about life here. Ultimately, she decided she did not want to remain in Australia and she returned to Greece with his two children in about October 2013 while he remained behind. He became estranged from his wife at about that time. He said that he had not been back to Greece to visit his children but he speaks to them regularly over Skype. He said he met his new partner Bayatly in about April 2015 and commenced a relationship with her soon after. He has now divorced his wife in Greece. The divorce was finalised by the relevant court in Greece in February 2017.[9] He said he wanted ultimately to marry Bayatly. He wanted to apply for a partner visa on the grounds of his relationship with her. His relationship with Bayatly is taken up further below.

    [9] The applicant submitted documents that established he has divorced his wife in Greece.

36. Further, he said he wanted to open a joinery or factory in Australia that produced novel, high quality products similar to what is produced in Greece where he trained as a cabinet maker. He said he had discussed with Bayatly establishing a joinery together because her area of expertise was similar to his. He described Bayatly as an architect. In her evidence, Bayatly said she is studying at Deakin University for a Bachelor of Architecture, and while studying she works as a freelance draftsperson formulating designs for domestic and commercial renovations and make-overs.

37. The Tribunal notes that the applicant was able to secure fresh employment and a fresh nomination application within 90 days of ceasing work with Hospitality Furniture in mid-April 2015. I2 applied to nominate him for a 457 visa during that 90-period. That weighs in his favour in this review. But the reminder of the evidence before the Tribunal relevant to this purpose head weighs against the applicant.

38. I2’s nomination application was refused as was Tekton’s subsequent application. Novare’s proposed application did not proceed. The applicant has remained in Australia for the term of his 457 visa, which but for its cancellation would have expired on 19 April 2017. During that time, he has proven able to find employers prepared to employ and nominate him for a 457 visa, but either their nomination applications did not succeed, or an application did not ensue at all. On the evidence before the Tribunal, the applicant has had a reasonable opportunity to secure new work in Australia and facilitate a fresh nomination for a 457 visa (or similar visa).[10] That has not occurred. Those matters weigh against the applicant in this review.

    [10] The 457 visa was abolished and replaced with Temporary Skills Shortage visas in March 2018. See >

    As explained to the applicant during the hearings, a 457 visa does not in itself entitle the visa holder to remain in Australia permanently, and it does not create an expectation of a permanent stay. A 457 visa holder can ultimately obtain permanent residency after holding a 457 visa but each case depends on its particular circumstances. A 457 visa is one of limited duration granted for the purpose of working for a sponsor in a nominated skilled occupation.

1. The reasons the applicant here nominated for wanting his 457 visa cancellation set aside and wanting to remain in Australia are not consistent with the purpose of a 457 visa. That purpose is not served by allowing the applicant to look for employment and sponsorship opportunities in Australia, explore business opportunities, or live with his new partner.

2. Accordingly, the purpose of the applicant’s stay in Australia under his 457 visa has expired. He ceased work with Hospitality Furniture and he has not been able to secure a fresh nomination for a 457 visa (or similar visa) after having had a reasonable opportunity to do so. His reasons now for wanting to remain in Australia are not consistent with a 457 visa purpose. But for the matters set out in paragraph 37 above, the balance of the matters relevant to this purpose head weigh against the applicant in this review.

   Circumstances in which the ground for cancellation arose

3. Hospitality Furniture manufactured commercial fit-outs. At the time the applicant worked for the company, it had five or six employees. The applicant worked there for about two years from April 2013 to April 2015.[11]

[11] The applicant gave this evidence during the hearings.

1. During the hearings, the applicant said that for his first year working for Hospitality Furniture, he did not encounter any problems. In his second year, the principal of the company gave him a management role supervising other employees and more responsibilities. He was given tight time deadlines to complete projects, which deadlines he was not able to meet. The applicant became stressed about the pressure on him at work and he sought medical assistance. The applicant submitted to the Tribunal a medical certificate dated 1 April 2015, in which the certifying doctor stated that the applicant was suffering from a major depressive illness and panic disorders, and that he would be unable to work from 1 April to 13 April 2015.[12]

[12] Certificate from Dr Mouratides dated 1 April 2015.

1. The applicant said that ultimately, he ‘exploded’ from the stress and pressure at Hospitality Furniture and he resigned in mid-April 2015.

1. The Tribunal accepts the applicant was suffering from depression and panic disorders (or anxiety) in his final weeks at Hospitality Furniture. The Tribunal has before it a medical certificate containing that diagnosis and it does not have any reason to go behind the certificate.

1. The Tribunal has not heard evidence from Hospitality Furniture, and the Tribunal does not have before it a letter or other document from that company giving its account of the reason the applicant left its employ. Further, apart from the applicant’s say so, the Tribunal does not have before it evidence about whether his claimed treatment at the hands of Hospitality Furniture caused his depression and anxiety and his ultimate departure from the company. The medical certificate before the Tribunal only reports on the applicant’s psychological condition in early April 2015. The certifying doctor does not record any complaint by the applicant about feeling under pressure at work (as he told the Tribunal), nor does it set out the likely cause of the applicant’s condition. The certificate does not allude to a connection between the applicant’s treatment at work and his psychological condition at the time. The certificate only establishes a temporal connection between the applicant suffering from depression and anxiety and leaving Hospitality Furniture. 

1. On balance, the Tribunal accepts that there was some connection between the applicant’s documented psychological condition in early April 2015 and his voluntary departure from Hospitality Furniture in the middle of that month. Further, the Tribunal accepts that some element of the applicant’s psychological condition in early April 2015 and his ultimate departure from Hospitality Furniture were due to circumstances beyond his control.

1. On balance, the Tribunal weighs this circumstances head in the applicant’s favour. But the weight is reduced by two matters. First the paucity of the evidence before the Tribunal about the circumstances in which the applicant left Hospitality Furniture. Second, even if the circumstances in which the applicant left Hospitality Furniture were entirely beyond his control, as set out under the purpose head above, the applicant has had a reasonable opportunity to regularise his stay in Australia on a 457 visa by securing another nomination. He has not been able to do so.

   Extent of compliance with visa conditions and co-operation with the department

2. There is some evidence before the Tribunal to the effect that the applicant has been working while in Australia on his Bridging Visa E in breach of the non-work condition of that visa. But the Tribunal does not have sufficient evidence before it to find that the applicant has in fact been working and has breached that condition of his bridging visa. That issue is addressed in paragraphs 76 to 98 below.

3. Other than the applicant’s breach of condition 8107(3)(b) of his visa as set out in paragraph 22 above, the Tribunal finds that the applicant has not breached any other condition of his visa. That weighs in his favour.

4. There is no evidence before the Tribunal of the applicant having failed to cooperate with the department. The applicant responded to the department’s notice dated 31 March 2016 to consider cancelling his 457 visa. He responded by the letter from his then migration agent to the department dated 18 April 2016. The applicant’s apparent cooperation with the department weighs in his favour.

   Hardship

5. During the hearings, the applicant pointed to two instances of hardship if his visa remained cancelled. His evidence proceeded on the assumption that if his visa remained cancelled he would need to return to Greece.

6. First, he said that if he were required to return to Greece he would be very upset. He expressed that sentiment by stating that requiring him to return to Greece would take away the ground upon which he stood. He said he had become accustomed to life in Australia and having to return to Greece would be a ‘hell’ for him. It would be too difficult for him to become accustomed to life in Greece again. He considered Australia to be his home now.

7. Second, he said that returning to Greece would take him away from Bayatly. He said he could not bear to be away from her for any long period of time.

8. He said that one benefit of returning to Greece was he would see his children again but that benefit would be outweighed by the hardships.

9. The Tribunal accepts that the applicant will undergo some hardship if he is required to return to Greece. He has been in Australia since 2011 and he plainly prefers Australia to Greece. The Tribunal gives that some weight but the weight is limited. The Tribunal does not consider the applicant to have been in Australia for long enough to render returning to Greece substantially burdensome. The Tribunal considers he will be able to re-establish himself in Greece relatively quickly.  Further, as stated in paragraph 39 above, his 457 visa was a temporary one that only entitled him to stay in Australia for the life of the visa: 19 April 2013 to 19 April 2017. Failing him obtaining some other visa or making some other application authorising his further stay in Australia, he was always going to be required to return to Greece when his visa expired on 19April 2017. The applicant has not been able to obtain another nomination for a 457 visa (or similar visa). The applicant did not say in evidence that his visa cancellation interfered with his attempt to obtain a further nomination.

10. The Tribunal accepts that the applicant at least wants to stay with Bayatly and that he will suffer some hardship if he returns to Greece and becomes separated from her. The Tribunal gives that some weight but the weight is limited for two reasons.

11. First, the Tribunal maintains some concerns about the evidence before it on the relationship between the applicant and Bayatly. The evidence of the applicant and that of Bayatly differed in some respects, and the applicant’s claimed commitment to Bayatly is not reciprocated by her in equal measure. For example, Bayatly stated that she gave the department adverse information about the applicant, which she now claimed was false, in the hope the applicant would be removed from Australia. This is taken up further under the other matters head below.

12. Second, the applicant’s 457 visa cancellation did not necessarily prevent him from applying for a partner visa from onshore by reason of his claimed relationship with Bayatly. Relevantly to the applicant, section 48 of the Act provides that a non-citizen whose visa has been cancelled under s. 116 may not apply for another visa from onshore unless the proposed visa is prescribed by legislation as being excluded from the operation of s. 48. Regulation 2.12 of the Regulations prescribes a list of visas for the purpose of s. 48. That list includes a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The applicant has been in Australia lawfully under a Bridging Visa E since 28 April 2016 when he instituted this review. It has been open to him to apply for those partner visas on the grounds of his relationship with Bayatly but he has not applied.

13. The applicant said in evidence that his 457 visa cancellation put pressure on his relationship with Bayatly and that was one of the reasons he has not applied for a partner visa. Even if that is correct, the Tribunal does not consider it appropriate to set aside a decision to cancel a 457 visa to relieve stress and facilitate a partner visa application. 

    Whether there are others whose visas would or may be cancelled under s. 140

14. The department’s file refers to secondary 457 visas held by the applicant’s former wife and children being cancelled under s. 140 of the Act. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before it is the decision cancelling the applicant’s visa. The visas held by his wife and children were automatically cancelled as a consequence of that cancellation. They were not cancelled by decision but by force of the operation of s.140(1) of the Act, which made the cancellation of those other visas self-executing on the cancellation of the applicant’s visa.[13] As no decision was involved in the cancellation of the visas apparently held by the applicant’s wife and children under s.140(1), the Tribunal has no jurisdiction with respect to them.

    [13] See Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

15. The visas of the applicant’s wife and children were cancelled consequentially when they were offshore. The applicant is now divorced from his wife and he has chosen to remain in Australia away from his children. Accordingly, the applicant’s visa cancellation has not resulted in him being separated from his family.

    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

16. The applicant is currently in Australia on a Bridging Visa E pending the outcome of this review. The bridging visa does not carry work rights. In the absence of the applicant making another successful visa application, or the Minister otherwise granting a visa, he will not have authority to remain in Australia once the review process has been exhausted. If that is the case, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The applicant will be given the opportunity to leave Australia voluntarily.

1. As referred to in paragraph 59 above, s. 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits the visas the applicant can apply for from onshore. The Tribunal has taken that potential limitation on the applicant’s future application actions into account. As set out in paragraph 59 above, the s. 48 bar does not apply to any application the applicant wishes to make for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa by reason of his relationship with Bayatly.

1. In submissions, the applicant’s solicitor stated that the Tribunal should set aside the delegate’s decision to cancel his visa because he might be subject to a three year ‘re-entry’ ban. The solicitor was referring to the potential application of Public Interest Criteria 4013. The Tribunal has considered the PIC. On the evidence before the Tribunal, the PIC is unlikely to apply to the applicant. These reasons for decision will not otherwise attract the application of the PIC.

1. Also, in submissions, the applicant’s solicitor said that a department decision maker would be more likely to refuse a future visa application if the applicant has had a visa cancelled in the past. The Tribunal has considered that possibility. There is no evidence before it to make out the claim but the Tribunal will give it some (limited) weight.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

2. In considering whether to exercise its discretion to cancel the applicant’s visa, the PAM3 policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia’s international obligations into account. These include the obligation in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, and Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the CRC, and the ICCPR.

3. The Tribunal has considered Australia’s international obligations. The evidence before it does not establish that Australia would be placed in breach of its non-refoulement obligations if the applicant’s visa remained cancelled.

4. Further, Australia would not offend its responsibilities to the applicant’s children if the applicant’s visa remained cancelled. The applicant is separated from his children. But that occurred when his marriage broke down and he chose to remain in Australia away from his children.

   Other matters – section 375A certificate

5. The department issued a certificate dated 25 November 2016 under s. 375A of the Act covering an attachment to an email identified in the certificate. By issuing the certificate, the department maintained that the relevant document was protected from production to the applicant on the ground that the document contained an allegation against the applicant and the source of the allegation expected anonymity. The certificate provided that the source of the allegation should not be disclosed nor should any information in the allegation that would identify the source.

6. At the first substantive hearing on 28 March 2017, the Tribunal gave the applicant and his solicitor a copy of the s. 375A certificate and asked them to comment on its validity. The applicant’s solicitor stated that although it may be in the public interest to keep the document from the applicant to protect the identity of the source of the allegation, any information that would identify the source should be redacted, and the document given to the applicant so that he could comment or respond to the allegation in the document properly. The Tribunal told the applicant and his solicitor that after the hearing, the Tribunal would send the applicant a letter repeating the allegation in the protected document, which was given to the applicant at the hearing under s. 359AA of the Act (this is referred to in more detail below). In his response to that letter, the applicant should comment in writing on the validity of the s. 375A certificate, and he should make any other application or request in writing, such as for a redacted copy of the document. The Tribunal adjourned the hearing to another day so it could receive and consider the applicant’s written response.

7. By letter dated 4 August 2017, the Tribunal gave the applicant particulars of the allegation against him in the protected document and asked him to comment on or respond to the information. Under cover of that letter, the Tribunal also gave the applicant another copy of the s. 375A certificate and asked him to comment on its validity.

8. The applicant did not comment on the validity of the s 375A certificate in writing. At the resumed hearing on 20 September 2017, neither the applicant nor his solicitor made any comment on the s. 375A certificate. In the end, the applicant did not argue that the s. 375A certificate was invalid.

9. The Tribunal considers the s.375A certificate to be valid to protect from disclosure the attachment referred to in the certificate. The protected document contained an allegation relevant to the review. The s. 375A certificate stated that the source of the allegation expected anonymity, and that could be gleaned from the protected document.  There is a public interest to be served in protecting the identity of the source of an allegation or information given to the department in confidence. If the source of information given to the department in confidence were revealed routinely, it would discourage people from giving the department information in confidence for fear of being revealed as the source of the information.  

10. The Tribunal considers it would not have been appropriate or possible to redact the protected document to conceal the source of the allegation and give a copy to the applicant. It may have been possible to identify the source of the allegation from the manner in which it was expressed in the document. Redacting the allegation in its entirety would have defeated the purpose of giving it to the applicant for the purpose his solicitor cited. In any event, come the resumed hearing on 20 September 2017, Bayatly claimed to be the source of the information to the department. The applicant did not maintain his request for a redacted copy of the document. Events overtook the applicant’s request.

    Other matters - information under s. 359A and 359AA of the Act

11. During the first substantive hearing on 28 March 2017, the Tribunal gave the applicant under s. 359AA of the Act particulars of the information containing the allegations against him, which the Tribunal received from the department. It invited him to comment on or respond to the information.

12. At that hearing, the Tribunal told the applicant that it had received information to the effect that he was working and earning money. He was generating invoices and creating debts using an Australian Business Number (ABN) that was registered to someone else. The person to whom the ABN was registered had not authorised him to use the ABN. He was receiving and retaining money generated from the invoices containing the ABN. The person who is registered to the ABN he was using had asked him to stop using it. He has not complied and continues to use the ABN without permission. The source of the information described his conduct as ‘fraud work’.

13. The Tribunal told the applicant that the information was relevant because it suggested he was working. That would be in breach of the non-work condition of his Bridging Visa E. The information was also relevant because it alleged he was engaged in unlawful conduct. The Tribunal could take such conduct into account when considering how to exercise its discretion. The information also cast doubt on his credit as an applicant and a witness.

1. The Tribunal told the applicant that, if accepted, the information would be a reason or part of the reasons for affirming the decision under review. The Tribunal invited the applicant to comment on or respond to the information at the hearing.

2. After giving the applicant particulars of the information, the Tribunal adjourned the hearing to allow the applicant to speak to his solicitor before responding.

3. On the hearing resuming on the day, the applicant said he did not use anybody’s ABN without permission or unlawfully. He said he wanted to see the document containing the allegations and he wanted to know which ABN he was alleged to be using. The information the Tribunal received does not include the ABN in issue.

4. The Tribunal told the applicant it would adjourn the hearing to another day and give him written particulars of the information so he could have more time to comment or respond it, and so he could do so in writing. He could also make submissions on the validity of the s. 375A certificate.

5. By its letter to the applicant dated 4 August 2017, the Tribunal repeated the particulars of the information given to him at the 28 March hearing and it asked him to comment on or respond to the information under s. 359A of the Act by 18 August 2017.

6. The applicant responded by sending to the Tribunal a statutory declaration sworn by Bayatly on 17 August 2017. In the statutory declaration, Bayatly stated that she contacted the department in August or September 2016 about her ‘former partner’ being the applicant. She stated that she ‘wrongly accused’ the applicant of using her ABN to generate invoices and earn income without her consent. She stated that at the time she contacted the department, she was in a de facto relationship with the applicant and they were having ‘issues’ in their relationship. She stated she was going through a difficult time in her life and she was ‘not in a good frame of mind’ when she contacted the department to make the ‘false complaint’. She stated that although she had separated from the applicant, they were now on good terms. She stated that it was wrong to provide the ‘false information’ to the department and she regretted doing so.

7. At the second substantive hearing on 20 September 2017, the applicant said that he did not agree with Bayatly that they were now separated. He maintained they were still together. He said they separated in Christmas 2016 but then resumed their relationship just after Easter 2017. His evidence was not clear on whether he ever lived with Bayatly as her partner and whether he was living with her now. He said he did not live with her all the time but stayed with her from time to time. She also stayed with him from time to time. His references to Bayatly staying with him were references to her staying with him at his friend’s home. He stayed at his friend's home when he was not staying with Bayatly. He said Bayatly normally stayed with him on weekends. He said that at the time of the hearing, he was living with Bayatly, and he had been living with her for a couple of weeks.

8. The applicant said that Bayatly paid rent of $2,400 per month. He did not contribute to the rent (when he was living with her) but he contributed by paying some other living expenses. He said that when he ceased work with Hospitality Furniture, he had savings of about $35,000. When he exhausted those savings, he began to borrow money from friends. He also began to draw down on credit cards, on which he owed about $10,000.

9. He said that he first learnt that Bayatly gave the department false information about him when she confessed that to him after the hearing on 28 March 2017. He said that he thought Bayatly had given the department false information about him in the middle of 2016 because she was angry with him at the time and wanted him removed from Australia. He said that during the middle of 2016, he argued with Bayatly often about money. He was not working and was not in a position to support her financially. She was working part time and sometimes struggled with money. That stressed their relationship.

10. In her evidence, Bayatly said that in August or September 2016, she told the department that the applicant was using her ABN to work and generate income and that he was untrustworthy. She made the allegations to the department in writing through its website. She did not have a copy of her written statement to the department. Subsequently, she spoke to a department officer in which conversation she repeated her allegations against the applicant.

11. She said that she also told her mother that the applicant was using her ABN to work and generate income.

12. She said that at the time she contacted the department, she was depressed about the progress of her studies and was paranoid and anxious. She thought the applicant was against her and she was not thinking straight. She said that she was consulting a psychologist during 2016 who had diagnosed her with post-traumatic stress disorder in August or September of that year. After the hearing, the applicant’s solicitor submitted to the Tribunal reports from doctors and counsellors, which provided that Bayatly had been diagnosed with a major depressive disorder and she had been receiving counselling from about the middle of 2015.

13. Bayatly said that the applicant was not living with her and he had never lived with her. She said their relationship was on-and-off. She was with the applicant (their relationship was on) when she gave the department the false information about him. But her psychological condition caused problems with their relationship. She said that when she gave the false information to the department she wanted him removed from Australia so that he would leave her forever. She wanted to move on. At the time, she had asked the applicant to leave her alone but he refused. She considered her only way out was to have the applicant removed from Australia.

14. She said she did not want the applicant removed from Australia now because she knew him more and was now committed to him. She said that without the applicant she would not be stable. She said she wanted to sponsor the applicant for a partner visa on the grounds of their relationship.

15. The Tribunal has some concerns over the evidence of the applicant and Bayatly on the relationship between them.

16. The applicant and Bayatly gave inconsistent evidence about whether they had ever lived together as committed partners. The applicant said that he had lived with the Bayatly as her partner for blocks of time and he was living with her at the time of the 20 September 2017 hearing. Bayatly said the applicant had never lived with her although they were together on-and-off.

17. The applicant says he is in a committed relationship with Bayatly, he cannot bear to be away from her, and he wanted to apply for a partner visa to stay in Australia with Bayatly. That is opposed to Bayatly’s evidence that in the middle of 2016 she wanted the applicant removed from Australia and was prepared to give the department false information about him to achieve that end. Bayatly said she gave the false information to the department while suffering from a psychological disorder that impaired her judgment. There is medical evidence before the Tribunal to the effect that Bayatly was receiving treatment for depression in mid 2016 but the evidence does not go as far as suggesting that her psychological condition was likely to have caused her to take the extreme step of giving false information to the department to have her on-and-off partner removed from Australia. Bayatly said she has now had a change of heart about the applicant and was committed to him and to assisting him to remain in Australia. But the reason for her change of heart was not clear to the Tribunal. The Tribunal was not impressed with Bayatly’s evidence on the reason for her change of position.

18. It is not necessary for the Tribunal to resolve the conflict of evidence between the applicant and Bayatly about their relationship and prefer one version. As stated in paragraph 58 above, the concerns the Tribunal has with that evidence goes to reducing the weight the Tribunal places of the applicant’s claim that he is in a committed relationship with Bayatly and being separated from her will cause him to undergo relevant hardship.

19. On the information containing the allegations against the applicant, which the Tribunal particularised to him, it:

    (a)Has before it evidence from Bayatly claiming to be the original source of the information to the department containing the allegations, and claiming that the allegations are false;

    (b)The department has not investigated the allegations against the applicant and has not established their veracity. The allegations are uncorroborated;

    (c)Finds, on the evidence before it, the allegations against the applicant are untrue; 

    (d)Does not find that the applicant has breached the non-work condition of his Bridging Visa E. It does not have sufficient evidence before it to sustain such a finding;

    (e)Does not weigh the information against the applicant. The allegations against him are serious and the Tribunal would require evidence of their veracity in order to weigh them against him; and

    (f)Disregards the information containing the allegations against the applicant entirely for the purpose of this review.

20. The department may want to investigate the allegations, and Bayatly's claim to have given it false information. Passing false information to the department must be deterred. At the hearing on 20 September 2017, the Tribunal warned Bayatly that she had sworn a statutory declaration claiming to have given the department false information and that she may want to seek legal advice on her position.

    Conclusion on discretion

21. The Tribunal has found that the purpose of the applicant’s stay in Australia on his 457 to have expired. He ceased work with his approved sponsor Hospitality Furniture in mid-April 2015 and he did not return to work for that company. Two proposed employers subsequently applied to nominate him before his visa was cancelled – I2 and Tekton – but those applications were not approved. A third proposed nominating employer – Novare – did not proceed with its foreshadowed nomination application. The applicant had a reasonable length of time in Australia to secure another nomination for a 457 visa (or similar visa). The reasons the applicant gave for wanting the delegate’s cancellation decision set aside and for wanting to remain in Australia were not consistent with a stay in Australia on a 457 visa. The Tribunal places substantial weight on those matters.

22. The Tribunal has weighed some considerations in the applicant’s favour as set out above.

23. Having regard to all the evidence before it and balancing the matters both in favour of cancelling the applicant’s visa or setting aside the delegate’s decision to cancel, the Tribunal concludes the correct and preferable exercise of its discretion favours cancelling the applicant’s 457 visa and affirming the delegate’s decision.

    Decision

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

    L. Hawas
    Senior Member