Hohmann-Andrasch (Migration)

[2019] AATA 890

Hohmann-Andrasch (Migration) [2019] AATA 890 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Christine Isabell Angelika Hohmann-Andrasch

CASE NUMBER:  1710649

HOME AFFAIRS REFERENCE(S):           BCC2017/913339

MEMBER:Sheridan Lee

DATE:4 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2019 at 11:42am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – did not secure alternative sponsorship – consideration of discretion – purpose of a Subclass 457 visa – degree of hardship – extenuating circumstances – financial capacity of sponsor – extent of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223; Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. 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. The applicant appeared before the Tribunal on 26 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Jakob Andrasch, son, Alexander Andrasch and Pastor Paul Crook.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Background

7. The decision of the delegate of the Minister for Immigration sets out that on 8 August 2015, the Department of Immigration and Border Protection (now the Department of Home Affairs) approved a nomination by the Christian Outreach Centre to sponsor the applicant for a Subclass 457 visa in the occupation of Program or Project Administrator.

8. As a result, on 15 April 2016 the Department granted the applicant a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

   Notification procedures

9. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

   [1]     Section 119.

10. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

11. On 7 April 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had received written advice from her sponsoring employer on 26 September 2016 that she had ceased her employment effective from 29 September 2016. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 12 April 2017.

12. Accordingly, the Tribunal finds that the applicant was given a notice of intention to consider cancellation in relation to her Subclass 457 visa. It also finds that this notice set out the grounds of the alleged non-compliance in respect of condition 8107. In addition, the Tribunal finds that the response the applicant provided on 12 April 2017 indicated that she understood the nature of the alleged non-compliance.

13. In the circumstances, the Tribunal considers that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

14. 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. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

15. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

16. On 29 September 2016, the applicant ceased employment with her sponsoring employer, the Christian Outreach Centre. Consequently, on 16 May 2017 the Department cancelled the applicant’s Subclass 457 visa on the basis that she had ceased on employment for more than 90 days.

17. On 15 September 2016, a new nomination application was lodged in respect of the applicant by Arrow on Swanston (Aust) Pty Ltd. The application was refused by the Department on 1 February 2017 on the basis that the position associated with the nomination was not genuine.

18. The decision to refuse the nomination application was appealed to the Tribunal. However, on 19 September 2018 Arrow on Swanston withdrew the review application. As such, the applicant had no approved or pending nominations at that time. On 27 September 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her to comment on or respond to the above information.

19. In her response, dated 10 October 2018, the applicant confirmed that the facts giving rise to the cancellation as outlined in the invitation were correct; however the circumstances in which they arose were outside her control.

20. As such, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    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. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, 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 are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[3]

    [3]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

23. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant and the oral evidence from the applicant and her family and Pastor at the hearing.

24. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

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

25. At the hearing, the applicant gave evidence that she first arrived in Australia in September 2008 on a student visa to complete religious studies. She has been living in Australia continuously since that time. The applicant’s husband and two adult sons also live in Australia.

26. The applicant was issued a Subclass 457 visa on 15 April 2016 to enable her to remain in Australia and work for her sponsoring employer, the Christian Outreach Centre, as a Program or Project Administrator. The applicant’s husband and youngest son are included as dependants on her Subclass 457 visa.

27. Prior to the termination of her employment with the Christian Outreach Centre, the applicant sought a new sponsoring employer for the purposes of her Subclass 457 visa. However, on 1 February 2017 the Department refused the nomination application lodged for this purpose. While an application for merits review of the decision of the delegate was initially lodged, the application was discontinued on 19 September 2018. Due to legislative amendments that took effect from 18 March 2018, it is no longer possible to lodge a new nomination application under the Subclass 457 scheme.

28. As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor her under the Subclass 457 scheme. Accordingly, given this and the fact that the applicant ceased her employment with the Christian Outreach Centre on 29 September 2016, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

29. While the applicant outlined her desire to remain in Australia, she did not outline any compelling need to remain in Australia.

30. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

31. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

32. At the hearing, the applicant confirmed that she has had no other compliance issues with the Department since arriving in Australia in 2008. This weighs in favour of the applicant.

    The degree of hardship that may be caused to the visa holder and any family members

33. As outlined, the applicant has a husband and two adult children residing in Australia. Her husband and youngest son are listed as dependants on her Subclass 457 visa and as such, their visas would be subject to consequential cancellations under s.140 of the Act.

34. The applicant’s youngest son Christian was 18 at the time of decision and completed his high school education in Australia in 2018. The Tribunal adjourned the original hearing date to provide time for Christian to complete his VCE exams with support from his family. The applicant gave evidence that Christian is hoping to undertake an apprenticeship as a Fitter and Turner. This was confirmed by Christian’s prospective employer, Paul Crook, who gave evidence that he owns a mechanical services business that primarily undertakes work in the pharmaceutical industry. The Tribunal has no evidence to suggest that Christian has applied for a discrete visa, and must assume that he would depart Australia with his parents upon the cancellation of his mother’s Subclass 457 visa. The Tribunal notes that Christian would be free to undertake further studies in Germany or to apply for a student visa to return to Australia himself.

35. The applicant’s eldest son Alexander was 24 at the time of decision. At the hearing, the applicant gave evidence that he married an Australian citizen in March 2017 and has applied for a partner visa. The Tribunal accepts that it is likely Alexander will remain in Australia with his wife and that the separation of the applicant, her husband and youngest son from her eldest son and his new wife would cause some emotional distress for the family.

36. The applicant has an aunty and a cousin living in Germany, she gave evidence that her parents have passed and she has no other family back in Germany.

37. At the hearing, the applicant gave evidence that she is living in a rental property in Melbourne and doesn’t own any property in Australia or Germany. She outlined that she has work rights on her current Bridging visa, however doesn’t have any ongoing paid employment. She has been undertaking domestic cleaning for a household. The applicant’s husband occasionally performs paid work with Paul Crook as a mechanical technician. The family also undertakes volunteer work with the Infinity Church in Ringwood.

38. On 28 November 2018, the applicant provided the Tribunal with an email offer of full time employment from Youth with a Mission Melbourne. Attached to the email was a staff rental agreement and an internet policy. No information on the nature of the position or how it would comply with the applicant’s visa conditions was provided. Further, no evidence was submitted to suggest that a new nomination application would be lodged and the Tribunal notes that due to legislative changes that took effect from 18 March 2018, it is no longer possible to nominate an occupation under the Subclass 457 visa scheme.

39. While it may be upsetting for the family to depart Australia, particularly after living here for more than 10 years with aspirations to remain permanently, the Tribunal finds that the cancellation of the subclass 457 visa will not result in any significant hardship to the applicant or her family. The Tribunal notes that the applicant has no financial commitments related to her housing in Australia, and she has family both in Australia and in Germany. Further, members of the family would not be barred from applying to visit Australia again from offshore. In particular, the Tribunal notes that the applicant held a temporary visa with no guarantee that she could remain in Australia on the expiration of the visa. The Tribunal notes that this factor does not point towards the favourable exercise of the discretion in this case.

    The circumstances in which the ground for cancellation arose

40. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

41. In submissions dated 10 October 2018, the applicant set out that her position with the Christian Outreach Centre was terminated not due to her performance or conduct, but the financial position of the company and its inability to maintain her employment. The letter of termination issued by the Christian Outreach Centre to the applicant on 15 September 2015 supports this account of events, stating that ‘Grow COC is no longer in the position to sponsor your employment… we would like to thank you for your efficiency and commitment to Grow COC and wish you all the best for your future endeavours.’

42. The applicant’s submissions went on to explain that she secured a genuine position with Arrow on Swanston, however the nomination of her position was refused on the basis of inaccurate assumptions, a semantic, subjective view of the role and an inaccurate assessment of the operation of the business.

43. She alleges that the processing times of the Department and Tribunal resulted in the breach of her visa conditions as she was confident the Tribunal would have ruled in her favour had the appeal not been withdrawn. However, she was subsequently informed by Arrow on Swanston that the company could no longer financially support the position and ceased employment with the company in September 2018.

44. The Tribunal accepts that the loss of employment with the Christian Outreach Centre and the decision by Arrow on Swanston to discontinue the merits review application was outside the applicant’s control. Further, the Tribunal notes that the applicant attempted to secure a new sponsor, lodging a new nomination application approximately two weeks before her original employment ceased. These factors weigh against exercising the discretion to cancel the visa.

45. At the hearing, the applicant advised that she has no visa or permanent residency applications pending. She advised the Tribunal that she thought she had a sponsor, and questioned why she would look for a new one.

46. However, as put to the applicant at the hearing, she must have been alive to the possibility that the merits review application by Arrow on Swanston would not succeed. The nomination application by Arrow on Swanston was refused by the Department on the 1 February 2017 and at the date of the Tribunal hearing on 26 November 2018 no new applications had been made in respect of the applicant.

47. The applicant had a period of 13 months from when the nomination application by Arrow on Swanston was refused by the Department and the legislative changes that abolished the Subclass 457 scheme taking effect on 18 March 2018 during which she could have taken steps to secure a new sponsoring employer. The Tribunal acknowledges that the applicant continued to work with Arrow on Swanston until September 2018 while her merits review was on foot and that she has subsequently found a new employer. However, as noted, the nomination application has been withdrawn and no new nomination applications were lodged in respect of the applicant prior to the abolition of the 457 visa scheme.

48. In the circumstances, the Tribunal considers that the applicant initially took judicious steps, within a reasonably short timeframe, in an attempt to regularise her migration status in Australia. However, the applicant’s non-compliance with condition 8107 of her visa is substantial, in the sense that at the time of decision she has not been employed with her sponsoring employer for more than two years. The decision not to seek out a new sponsor was a decision within the applicant’s control. The Tribunal considers that this weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

1. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

2. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

   Australia's international obligations

3. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

4. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The applicant has adult children, and she did not make any claims regarding her potential entitlement to a Protection visa, or her rights under the ICCPR, the Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s Subclass 457 visa.

5. Therefore, the Tribunal is satisfied that there is little in these matters to support the exercise of the discretion in the applicant’s favour.

   Any other relevant matters

6. At the hearing and in post-hearing submissions, the applicant requested that the Tribunal grant her and her family permanent residency to recognise their contribution to Australian society over the ten years they have lived in this country. However, the applicant confirmed at hearing that she has no application on foot. As explained to the applicant, the Tribunal can only undertake a merits review of the decision before it, there is no such general power to grant permanent residency.

7. The Tribunal notes that it is open to the applicant to make a request for the Minister to exercise their discretion under s.417 of the Act upon receipt of this merits review decision. Having considered the guidelines, the Tribunal does not consider the matter suitable for a referral.

8. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa.

9. Nevertheless, the Tribunal expresses the hope that the Department gives due consideration to the circumstances that led to the applicant’s non-compliance with condition 8107, as well as the reasons set out in this decision record in terms of any future immigration matters affecting the applicant in Australia. 

   DECISION

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

    Sheridan Lee
    Member