Girau (Migration)

[2018] AATA 2250

Girau (Migration) [2018] AATA 2250 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniel Girau
Mrs Anna Karlatsan

CASE NUMBER:  1725306

DIBP REFERENCE(S):  BCC2017/2593266

MEMBER:Kate Millar

DATE:17 May 2018

PLACE OF DECISION:  Adelaide

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 17 May 2018 at 6:53pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether ground for cancellation exists – Where applicant ceased employment for longer than 90 days – Whether the visa should be cancelled – Where medical condition partially prevented applicant from working – Other contributory reasons for leaving employment exist – Where applicant has made a genuine attempt to obtain sponsorship – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 2, cls 457.221, 457.223A, 457.224, Schedule 4, PIC 4013, Schedule 8, Condition 8107

CASES
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. Mr Girau came to Australia from Italy in 2014 on a temporary work visa to work as a chef.  He was employed by Jesster Worldwide Pty Ltd (Jesster) but ceased employment for Jesster on 12 March 2017.  Jesster operates a business called Bib and Tucker and Mr Girau was employed at the business as a chef.

2. As his employment had ceased for more than 90 days, on 11 October 2017 his Subclass 457 (Temporary Work (Skilled)) visa was cancelled by a delegate of the Minister for Immigration to cancel his under s.116 of the Migration Act 1958 (the Act).

3. The delegate cancelled the visa under s.116(1)(b) on the basis Mr Girau has failed to comply with the conditions of his visa. His visa was subject to condition 8107, which includes that if the visa holder ceases employment, the period in which he ceases employment does not exceed 90 days. The issue to be decided is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. Mr Girau and Ms Karlatsan appeared before the Tribunal on 21 March 2018 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. These include the ground set out in s.116(1)(b), which applies where a person did not comply with a condition of his or her visa. 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 or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to Mr Girau’s visa. This condition requires that if the visa holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days.

9. As Mr Girau finished work with Jesster on 12 March 2017, He started work again in November 2017 and ceased work for more than 90 consecutive days he is in breach of a condition of his visa and the ground for cancellation under s.116(1)(b) is made out.

10. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

12. Mr Girau came to Australia on a working holiday visa, as had had heard there was work in his profession.  He has recently married and was thinking to start a family.  He considered Europe was not the best place economically or politically.

13. Mr Girau said after he arrived in Australia he worked in an abattoir and then in a winery.  After completing his regional work he moved to Perth to work as a chef in Bib & Tucker.  After he was granted a 457 visa, he said his work hours kept increasing from the 38 hours per week agreed in the contract to 48 hours on a roster plus overtime, leading to him working 50 – 55 hours per week.  He said the employer treated everyone on a visa the same way, and increased their hours.  He was working too much and was very tired and as a result his family life suffered. 

14. When he could apply for permanent residency, it was summer season which was a busy time and the owner said he had to show he could do more and could be relied on.  He states his employer did not say anything bad about his work, but did not begin the process for his permanent residency and wanted Mr Girau to apply for a different kind of visa.

15. On 29 February 2017 he said he was supposed to start his shift at 7am but on the way to his care stumbled and dislocated his shoulder.  He called his supervisor at work and went to a doctor who advised rest, not to lift heavy objects and also recommended surgery.   His employer said it was a busy period and he needed Mr Girau to work, however this involved rolling and stretching dough which he could not do.   

16. Mr Girau said his employer did not take this well and told him to take painkillers and go back to work.  He was told if he could not go back to work they would replace him with someone else.  Mr Girau said he told his employer he was willing to use his holidays or take unpaid leave but was told to return to work or provide a medical certificate.

17. Mr Girau said he went in certificate and tried to talk to his employer, but in the circumstances and under pressure he resigned.  He said he wasn’t thinking and should have sought advice before resigning. 

18. Mr Girau started to look at other visa options but the charges to the skilled migration program resulted in some migration agents being confused and it was hard to find a solutions.  He found a sponsor, but this did not work out as the sponsor’s business was not going well. 

19. He and his partner obtained a loan from their parents and moved to South Australia to purchase a house and look for a job.  He was in the process of negotiating with an new sponsor when his visa was cancelled.

20. Mr Girau says he was doing his best to do his job, but was placed under physical and mental stress such that he had to leave. 

21. After this he spoke to friends and found out there would be changes to the Subclass 457 visa and there was confusion about what they would mean.  The migration agents he saw were not clear about the changes and employers were reluctant to take him on because they were not sure about which visa he could hold.  He contacted a number of agents, and found  out that a permanent (Subclass 187) visa is only available in regional areas.  As Adelaide is in a regional area he relocated to Adelaide to try and find work.  He took his resume to various places in person, and looked on Seek and Gumtree.  He said one option looked good, and he was asked to pay the fee for the visa, but ultimately decided to refuse the position because he did not want to go back to what he was doing, presumably working on a temporary visa. 

22. At this time his visa was cancelled.  Since being in Adelaide he tried to find work so he could apply for a Subclass 187 visa but after his visa was cancelled he could not apply and initially not work.  After being granted work rights he has tried to find work, but thinks all employers who see he is on a bridging visa think he may have to leave and do not want to invest the time.

23. He said he has now found a job as a chef in Sydney and he is going back and forth to Sydney while still maintaining an address in Adelaide.  He said his current employer is willing to sponsor him for a subclass 457 visa.  If his visa is not cancelled, Mr Girau said it would cease 24 November 2018.

    The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

24. The purpose of a Temporary Work (Skilled) visa is to fill short term skilled shortages in Australia.  Mr Girau said he worked for the employer who sponsored him for a period  of three years, with some of that period on a working holiday visa, and then approximately 2 years and four months on the Temporary Work (Skilled) visa.  After he left this employment, he was not employed until November 2017 but is again employed as a chef as shown by his current payslips and a letter from his current employer. As a result, he has been was in Australia for the purpose for which the visa was granted for the majority of the period of the visa.   

25. Mr Girau said he has been in Australia for five years and have connections with other people.  He said they have invested a lot to remain in Australia.  As he and Ms Karlastan are of different nationalities, with Ms Karlastan being a citizen of Russia, they regard Australia as their home.

    The extent of compliance with visa conditions

26. There is nothing before me to show Mr Girau has not otherwise complied with the conditions of his visa.  He says that he was granted work rights on his bridging visa.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. Mr Girau said it would be a disaster financially if he is required to leave.  He has a loan for a car which they would have to dispose of and furniture and personal effects they would have to sell or give away.  He said their parents sent them money to purchase a house but they have needed to meet their expenses from that money and it is now exhausted. 

28. I accept that it would cause Mr Girau and Ms Karlastan considerable financial hardship if the visa is cancelled, and they would suffer financial losses in having to dispose of their car and personal items. 

29. Mr Girau’s parents live in Italy and he has a half-brother who lives with his mother.  Ms Karlastan’s parents and sister live in Russia.  He says they have nowhere to say if they return to Italy, and he does not have a passport for Russia. 

30. He says that the situation in Italy and Europe in general has deteriorated with violence and robbery in the news every days and he considers it is unsafe for him to go back without a place to safety.   I do not accept that there is an unacceptable risk to his safety should he return.

    The circumstances in which ground of cancellation arose

31. In his written submission Mr Girau said his employment ended because he was injured on his way to work.  He said at hearing he resigned because of pressure at work.  He was requested to provide further information on the termination of his employment and his injury after the hearing.

32. The medical certificate Mr Girau had provided  prior to the hearing was dated 13 March 2017, one day after his employment ceased on 12 March 2017.  This certificate states he is having left shoulder problems with recurrent subluxation/dislocation of the shoulder and most likely would require surgery to fix the problem.  After the hearing, he provided a copy of a medical certificate stating he has a medical condition and is unfit for work from 4 to 10 March 2017, a copy of a medical certificate stating he has a painful left shoulder and is unfit from 28 February to 3 March 2017 and a copy of a prescription for Naprosyn dated 28 February 2017.  I accept on the basis of these certificates that he had a problem with his shoulder.

33. Mr Girau also provided copies of emails from his employer.  These emails do not entirely support his evidence about the termination of his employment.  The email chain commences with an email from Mr Girau to his employer dated 9 March 2017 stating the position is not a good fit for him and he is resigning.  The employer replies that he is sorry Mr Girau is leaving as he was a valued team member and asking if he was going back into work to finish up.

34. Mr Girau then emails that because he dislocated his shoulder the doctor has suggested not to work, and to fix it he needs surgery which would mean he could not work for one to two months.  For this reason he states it is better for him to take his accumulated holiday from Monday.  He says that if he works there is a high chance his shoulder will be re-injured and make the situation worse, or will cause him pain.  Mr Girau enquires what the best solution is for his employer.

35. His employer replies that he has been in contact with Fair Work, and that from the time his medical certificate expires he needs to provide evidence that he requires surgery, and a doctor’s note with a report from the scan stating this is the case.  It is stated they offered to pay for the scan, but Mr Girau has not had a scan, and has only provided a medical certificate that says he has a medical condition. It states they are running a business, and it makes it hard if they do not know where they stand and if they have to replace him. 

36. Mr Girau replies on 12 March 2017 that he was planning to have the surgery done outside Australia to reduce the cost.  He states he will provide evidence of his injury and call Fair Work himself.   Mr Girau separately provided a record of his contact with Fair Work that shows he in fact had already contacted them on 1 and 3 March 2017.

37. His employer then request clarification of his plans to return, and Mr Girau responds with further information about his condition.  The employer then asks if he would be happy to terminate his employment on the current pay run in which all of his annual leave would be paid and states this would be the best scenario for them so that they can search for a new chef.

38. The email chain points to both parties being advised by Fair Work about the process, and to Mr Girau deciding to leave the position.  The employer seeks clarification of his positon and requests medical evidence regarding his time off work.  Mr Girau said that there were numerous other calls, and there is no further information on the content of the calls.  However, I do not consider the email chain supports that Mr Girau was dismissed solely because he was injured rather than a business needing to consider how it would manage Mr Girau’s absence, potentially for a lengthy period.  

39. Mr Girau also provided statements from two work colleagues who state he was working 47 to 50 hours per week and meal break were not provided except on a split shift.  These statements also say his employment was suddenly terminated due to a serious injury. The statements are contained in an email in one case and a typed letter in the other and are unsigned, although one statement attaches a copy of the person’s passport.  Ms Karlastan also gave evidence that Mr Girau was tired and stressed, and he couldn’t work.  She said he was told he needed to work when he was going to go and have his shoulder fixed. 

40. While I accept that Mr Girau has a shoulder condition, I am not satisfied that this in itself led to the termination of his employment.  However I am satisfied that the conditions of his employment included working long and often onerous hours and that his employer sought to clarify whether or not he would return so that they could replace him.  I consider it more likely that Mr Girau was working long hours and finding this difficult to manage and, given his account of his employer failing to process his application for a permanent visa, he did not wish to continue these working conditions with an injury and without an assurance he would obtain a further visa.  While I accept his shoulder was a factor in ceasing work, he has not subsequently had any surgery and has returned to work as a chef. 

    Whether there would be consequential cancellations under s.140

41. If Mr Girau’s visa is cancelled, Ms Karlastan’s visa will also be cancelled.  Ms Karlastan gave evidence to the Tribunal.  She said on arriving in Australia she spoke Russian and Italian and did not speak English.  She has learned English and has completed a make-up artistry course and was working in Perth as a make-up artist which was challenging as she had to speak English.  She worked over the Christmas period in retail in Sydney.  She said if the visa is cancelled this would cause her hardship as her parents gave them money for a house, and because they wanted to start a family¸ but now they have no money. 

    Whether there are mandatory legal consequences as a result of the cancellation

42. In looking at any mandatory consequences of cancelling the visa, there are limited visas for which Mr Girau can apply for from within Australia if your visa is cancelled. 

43. Mr Girau could lodge an application for a further visa form off-shore. In any new application for a 457 visa he would need to show he has substantially complied with the conditions of his last substantive visa (cl.457.221 of Schedule 2 of the Regulations), that he has not acted in contravention of particular provisions of the Act (cl.457.223A) and that he meets certain Pubic Interest Criteria in Schedule 4 of the Regulations (cl.457.224). These provisions would have to be assessed regardless of whether his visa is cancelled.

44. Of the Schedule 4 requirements, Public Interest Criterion 4013 sets out risk factors.  These include where a person has had a visa cancelled because he or she was found to have worked without authority (PIC4013(2)(a))  A risk factor may mean the person does not meet the requirements for a period of three years after the cancellation (PIC4013(1)(a)).  As the ground for cancellation in this case involves ceasing work for longer than 90 days, and does not involve cancellation for working without authority, this does not apply. 

    Whether any international obligations would be breached as a result of the cancellation

45. There were no international obligations that were identified that would be breached as a result of the cancellation. 

    If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia

46. This is not a permanent visa.  Mr Girau states he has created strong links with the Australian community and society and has embraced the Australian lifestyle.  He and his wife have only recently arrived in South Australia for Perth, arriving on 15 August 2017, and did not have a great deal of opportunity to develop significant ties in South Australia.   They effectively relocated to Sydney two months after arriving in Adelaide, with Mr Girau commencing work in Sydney in November 2017.

    Any other relevant matters

47. If the visa had not been cancelled it would cease on 24 November 2018, approximately 6 months from the date of this decision.

CONCLUSION

1. While I do not accept that Mr Girau’s shoulder injury was the sole reason for his employment ceasing, I do accept he was working long hours and this had an effect on his decision to resign after his problems with his shoulder were aggravated or had persisted. 

2. Mr Girau worked for his nominating employer for over two years while on a Temporary Work (Skilled) visa, and for approximately three years in total.  He worked in the nominated occupation, and has now found another job in his nominated occupation.  He says his new employer is willing to sponsor him.

3. In light of his work for his nominating employer and continued work in a nominated occupation, I consider he should be given the opportunity to be sponsored by his current employer.   His visa will cease in approximately six months, at which point he will need to apply for another visa or leave Australia.  I consider it reasonable to give him the period until his visa ceases to seek to be sponsored.

4. Having considered the circumstances as a whole, I have concludes that the visa should not be cancelled.

   DECISION

5. 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.

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

   Kate Millar
   Member