Ittipol-Olarn (Migration)

[2019] AATA 3729

Ittipol-Olarn (Migration) [2019] AATA 3729 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pakkanun Ittipol-Olarn

CASE NUMBER:  1913012

HOME AFFAIRS REFERENCE(S):           BCC2019/436641

MEMBER:John Cipolla

DATE:2 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2019 at 3:52pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – worked for businesses other than sponsor – consideration of discretion – termination of employment without any warning – beyond applicant’s control – underpayment of wages – reasonable steps to regularise migration status – subject of an approved nomination – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant became the subject of an approved nomination by their sponsor D & N Australia Pty Ltd on 28 May 2018 and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 26 June 2018. On 22 January 2019 the Department came into possession of information, provided upon request by the applicant to the Australian Border Force (ABF), which indicated the applicant was working for three businesses, none of which were associated with the sponsor; Thai Healing Touch, Intercontinental Hotel Odyssey Spa, and an unnamed massage shop in Katoomba. It was put to the applicant in a Notice of Intention to Consider Cancellation (NOICC) dated 20 March 2019 that under s.116(1)(b) of the Migration Act the applicant is required to comply with all conditions of their visa; including condition 8107(a)(ii)(B), under which the applicant must only work in the approved position in the business of the sponsor. The applicant was notified that their apparent violation of this condition could form grounds for the cancellation of their visa and was invited to comment.

3. The applicant responded to the NOICC on 23 March 2019. In the response the applicant stated that they had been fired from their position with the Sponsor without any warning or compensation, that they had engaged in casual employment to meet high cost of living expenses and had been making concerted attempts to find another sponsoring business.  The applicant then referred to additional circumstances including their plan to establish a therapeutic massage business which would benefit members of Australian society, and the likely discrimination that the applicant would face upon return to Thailand, as a transgendered person.

4. In the Departmental decision dated 22 May 2019, the delegate found that the grounds for cancellation of the visa were made out on the basis that the applicant had not complied with Section 116(1)(b) of the Act. In the assessment of the discretionary factors as to whether or not the visa should be cancelled the delegate attributed relatively limited weight in the applicant’s favour. With regard to the purpose of the applicant’s travel to and stay in Australia, the delegate found that the applicant had not conformed to the purposes of the Subclass 457 visa had worked for non-sponsor affiliated businesses in contravention of visa conditions, and that the applicant’s stated intentions to stay in the country permanently were contrary to the temporary purposes of the visa. With regard to the degree of hardship caused by the cancellation of the applicant’s visa, the delegate found that the applicant had not complied with the purpose of the visa, and that no information had been provided regarding potential discrimination in Thailand, nor had a protection visa application been lodged in accordance with their alleged fear of discrimination. With regard to the circumstances in which the grounds for cancellation arose, the delegate found that the applicant had not complied with condition 8107 and that they did not proactively contact the Department once the change in employment circumstances had occurred. With regard to whether other applicants would be affected by the cancellation the delegate found this not to be the case, and, whether Australia would be in breach of any international obligations to the applicant, the delegate again found in the negative. Finally the delegate considered whether there were mandatory legal consequences for the applicant in the event of a cancellation; the delegate found in the affirmative, having determined that they would become unlawful in Australia that they would be affected by s.48 and prohibited for three years in applying for visas with a PIC 4013 criterion.

5. On 24 May 2019 the applicant applied for review of their visa cancellation with the Tribunal.

   REVIEW HEARING

6. The Tribunal conducted a review hearing on 25 July 2019.  The applicant attended the hearing and gave evidence of the Tribunal predominantly in English but at times deferring to the accredited Thai interpreter who had been engaged for the hearing.

7. At the outset of the review hearing the Tribunal explained in detail the relevant issues in review, namely whether the evidence indicated that the applicant had breached a condition attached to their Subclass 457, namely condition 8107 which requires the applicant to remain employed by the current sponsor or indeed another approved sponsor throughout the life of the visa.  The Tribunal also needed to consider whether or not the visa should be cancelled having regard to a range of discretionary factors. The Tribunal explained the prospective outcomes of the review and that it had regard to the evidence provided to the Department and would have regard to all of the evidence provided at merits review.

8. The Tribunal noted that the Subclass 457 visa that is the subject of this review was granted to the applicant on 26 June 2018 and was valid until 26 June 2020 and that the applicant had been sponsored by a business D & N Australia Pty Ltd t/a Let’s Massage Bondi Beach.

9. The Tribunal asked the applicant when they commenced work for this business in Bondi Beach the applicant stated at the end of 2014. The applicant stated that the business was located in Hall Street Bondi Beach.

10. The Tribunal asked the applicant about their immigration history in Australia to date. The Tribunal made reference to movement records which had been obtained from the Departmental database. The applicant advised that they arrived in Australia on 11 January 2011 as the holder of Subclass 572 visa. This visa was valid until 15 March 2013. The applicant departed Australia on 14 September 2011 and advised that this was to attend the funeral of their father, returning to Australia on 29 September 2011.

11. The applicant was granted a further student visa valid until 3 November 2014. The applicant travelled back to Thailand at the end of 2013 for a family visit for approximately a month.  The applicant was then granted further student visas and returned to Thailand to visit family in December 2016 returning to Australia in January 2017. The applicant then made an application for a Subclass 457 visa which, as has been noted, was granted on 26 June 2018 and was valid until 26 June 2020.

12. The applicant provided evidence of their study history in Australia. The applicant advised they initially studied and attained a Certificate III as a Pastry Chef the applicant then commenced studies in hairdressing at an education institute in Bondi Junction which was not continued because of the poor quality of tuition and the poor amenities of the facility. The applicant then commenced a range of courses at APC Business School in Kent Street Sydney and the applicant successfully completed studies in marketing and business that included the attainment of certificates, diplomas and advanced diplomas. The applicant provided evidence of the successful completion of all courses of study. The applicant then undertook a Diploma of Remedial Massage at the New South Wales Business College located in Mary Street at Surry Hills. The applicant stated that they completed this course successfully obtaining the diploma a copy of which was provided to the Tribunal at review.

13. The applicant advised that whilst studying for the Diploma of Remedial Massage they worked at Lets Massage in Bondi Beach who, happy with the quality of the applicant’s abilities, sought to sponsor them under the Subclass 457 visa programme.  The applicant advised that under the terms of the contract of employment with this sponsoring employer they were to be paid $55,000 per annum. The applicant stated that during the period that they worked for the sponsoring employer they were substantially underpaid. The Tribunal enquired how the applicant was paid i.e. by cash or direct deposit into the applicant’s bank account. The applicant advised it was a combination of both cash and direct deposits and the applicant undertook to provide evidence to the Tribunal post hearing pertaining to ongoing underpayment during the period of employment. The applicant stated that because of their skill set they were often asked to manage the business in Hall Street. The applicant provided evidence to the Tribunal at review which indicates that the applicant was paid significantly less than the $55,000 per annum that they were expected to be paid under the terms of their contract of employment.

14. The Tribunal asked the applicant about the circumstances that led to their termination with the sponsoring employer. The applicant stated that being located in Bondi Beach, the clients were very fussy and at times very demanding. The applicant stated that on one shift when they were involved in managing the salon and a client had undergone a one-hour massage. The applicant stated that at the end of the massage this client was complaining that they needed more than one hour and were not willing to pay for any additional time. The applicant stated that because of the existing bookings there was no capacity to provide additional massage or to deliver it to this client unpaid. As a consequence of this altercation the applicant became the subject of an adverse post on social media. The applicant stated that as a consequence of this adverse internet post and they were terminated from their employment with no notice at all. The applicant stated that after the termination of employment they set about attempting to obtain another business sponsor without success. The applicant stated that in the meantime they obtained work with a number of other remedial massage organisations including Touch of Thai in Thirroul. The applicant stated that they were now the subject of a nomination application by Pommongkut Pty Ltd t/a Lek Massage Campbell Street Haymarket.  This nomination application was the subject of merits review with the Tribunal and on 2 August 2019 the Tribunal approved the nomination.  As a consequence, the applicant is now the subject of an approved nomination for a Subclass 482 visa and the owner of that Australian business has provided evidence that a combination of the qualifications and experience of the applicant will be an asset to the business going forward.

15. The applicant advised that they had always complied with the conditions that were attached to visas held up until the point of cancellation.  The applicant stated that the only breach of condition since arriving in Australia in 2011 was as a consequence of being sacked by the 457 sponsoring business without reason or notice, something that was beyond the applicant’s control.

16. The Tribunal asked the applicant what hardship they would experience as a consequence of the cancellation of the visa. The applicant stated that when they obtained the Subclass 457 visa they expected to be able to work in Australia as a Massage Therapist for two years until June 2020. The applicant stated that they have been in Australia for an extended period of time and that they forwarded money to family members in Thailand, particularly the applicant’s mother to assist with ongoing health related costs. In addition to this the applicant stated that they were concerned that they would experience discrimination in Thailand because they identified as transgender and would be subject to institutional and societal discrimination. The applicant stated that they had not encountered any discrimination as a consequence of being transgender in Australia.

17. The Tribunal further noted that if the applicants visa was cancelled that they would be become an unlawful non-citizen and may be liable to detention under s.189 or removal under s.198 of the Migration Act. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia. The applicant would also be the subject of Public Interest Criterion 4013.

    Does the ground for cancellation exist?

18. 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 the applicant’s visa. The relevant paragraph of this condition is 8107(3)(a)(ii)(b) if the applicant works for businesses other than the most recently approved sponsor.

19. The evidence before the Department provided on 22 January 2019 indicated that the applicant had been working for Thai Healing Touch, Intercontinental Hotel Odyssey Spa and a massage shop located in Katoomba NSW.  The fact that the applicant worked for businesses other than the 457 sponsoring business is not in dispute.  Indeed the applicant has confirmed that they were terminated from their position of employment with D & N Australia Pty Ltd t/a Let’s Massage Bondi Beach and that immediately set about finding an alternate business sponsor and undertook work to meet cost of living expenses during this search.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

21. 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’.

22. The Tribunal has first considered the purpose of the applicant’s stay in Australia and whether there is a compelling need for the applicant to remain in Australia. The purpose for which the 457 visa was granted was for the applicant to work in the approved nominated occupation of Massage Therapist for their former sponsor. The Tribunal considers that the purpose for which the visa was granted ceased, when the applicant’s employment was abruptly terminated without any warning to the applicant.  The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to circumstances beyond the applicant’s control.

23. The evidence before the Tribunal indicates that the applicant signed a contract of employment and expected to be paid $55,000.00 per annum as per the terms of that contract.  This did not transpire and indeed the evidence provided at review indicates that the applicant was underpaid, paid at times through a direct bank deposit and other times by cash and worked extensive hours often acting as Salon Manager for which they were not properly remunerated.

24. The applicant gave his evidence in an honest and forthright way and the evidence indicates that the applicant made every attempt to regularise their immigration status through finding new employment since the cessation of employment with D & N Australia Pty Ltd t/a Let’s Massage Bondi Beach. The evidence before the Tribunal indicates that the applicant’s nominating employer clearly took advantage of the applicant during the period the applicant worked with them by having to work extended hours and for not being remunerated in accordance with their contact of employment.  The evidence indicates that the applicant was the subject of exploitation and abuse at the hands of their employer.

25. The Tribunal notes that the applicant has substantial experience as a Massage Therapist and that the applicant is now the subject of a successful nomination for a Subclass 482 visa to work for a therapeutic massage business Pommongkut Pty Ltd t/a Lek Massage in Haymarket Sydney.  Indeed the Tribunal has received evidence from the Director of that business attesting to the skills and ability of the applicant and how they believe the applicant ongoing employment in the business will be an asset to the business going forward.

26. The Tribunal also notes that if the applicant’s visa is cancelled, they will as noted be affected by s.48 of the Act and will need to depart Australia to lodge a future application and this will be an additional financial burden for the applicant.  The Tribunal notes that the factors giving rise to the cancellation of the applicant’s visa were beyond the applicant’s control and that the applicant made every effort after ceasing employment to regularise their migration status.  These considerations when cumulatively considered weigh in favour of not cancelling the visa.

    CONCLUSION

27. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

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

    John Cipolla
    Senior Member