Jouet Crowyn (Migration)

[2019] AATA 1423

Jouet Crowyn (Migration) [2019] AATA 1423 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Veronique Jouet Crowyn
Mr Patrice Roland Maurice Crowyn
Miss Victoria Marie Lucie Christine Crowyn

CASE NUMBER:  1812828

HOME AFFAIRS REFERENCE(S):           BCC2018/472855

MEMBER:Denise Connolly

DATE:3 January 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 03 January 2019 at 10:20am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – ceased employment with the sponsor over 90 days – position of Baker – employer went into liquidation – work accident requiring surgery – restricted duties not allowing work as a baker – employer owed the applicant entitlements – no new sponsor within 90 days – financial and emotional hardship to separate the family – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994Schedule 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. This is an application for review of a decision dated 3 May 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 13 November 2015 to work in the occupation Baker having been sponsored by Bread and Roses Pty Ltd. The sponsor was liquidated and ceased to trade on 25 September 2017. As a result of this, the applicant was taken to have ceased employment with the sponsor on 25 September 2017. The delegate found that the applicant was in breach of condition 8107(3)(b) because she ceased employment with the sponsor for a period exceeding 90 consecutive days. The delegate found that there were was a ground for cancellation under s.116(1)(b). She discussed the submissions made by the applicant in relation to the exercise of discretion however formed the view that the ground for cancellation outweighed the reasons for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 18 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the second and third named applicants.

5. 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

6. The applicant was sponsored by Bread and Roses Pty Ltd to work in the position Baker. She was granted the visa on 13 November 2015 and it was due to expire on 13 November 2019. The business went into liquidation on 25 September 2017. The applicant wrote to the Department soon after this and advised that she had an accident at work which required surgery and that she would not be able to work as a baker for another 3 months. Therefore she could not find another sponsor in the 90 day period. In January 2018 she wrote to the Minister and advised that her former employer had not put her on the payroll and had organised the liquidation of the business because she owed the applicant $65,000 and would not pay. The applicant indicated that she wished to remain in Australia because it had been her home for 6 years and she wanted her daughter (the third named applicant) to complete her studies here.

7. The delegate sent to the applicant a notice of intention to consider cancellation on 22 March 2018. The applicant provided written submissions in response including medical evidence confirming she had a right shoulder injury. She had surgery after an accident at work. She was on restricted work duties which did not allow her to work as a baker. She sought permission to work in another position as this would assist her recovery. She expected that she would be able to apply for permanent residence after working for the sponsor as a Subclass 457 visa holder. Her husband also worked for the sponsor. They were expected to work 90 hours a week and soon after commencing employment they were owed several weeks’ pay. She wrote to the sponsor but she did not respond. The applicant continued to turn up for work but soon after she and her husband were asked to leave the bakery and the locks were changed. For several weeks the sponsor would not answer her emails, text messages or phone calls. In May 2016 the applicant agreed to return to work with the sponsor however when it came time for her to lodge her tax return she noticed her PAYG payment summary amounts did not match her payslips. When she enquired about this she was told she was not formally on the payroll. The sponsor told the applicant she did not have to worry about it but then appointed a new bookkeeper who told the applicant he could not do anything about this. After advice she decided to lodge her tax return with a Statutory Declaration and copies of her payslips and bank statements, declaring her correct income.

8. Before the sponsor’s business was liquidated the applicant decided she would make an application for a skilled visa. However to qualify she needed recognition for prior learning. She went to a school to obtain the assessment. She had completed the majority of the requirements before she had her shoulder surgery on 13 February 2017. In March 2017 she received an email stating that the school had gone into liquidation and she would not be able to get her RPL. She could not go to another school as by then, having had the surgery, she could not use her shoulder. She asked the sponsor if she would sponsor her for permanent residence and she agreed. However when the sponsor heard about how she completed her tax return, by Statutory Declaration, she started bullying and harassing the applicant. She organised the liquidation of her business. This meant she did not have to pay money owed to the applicant and her husband. She has still not provided an explanation as to why the applicant was not on the payroll. She did not pay the applicant’s superannuation.

9. The applicant understood that she needed to find a new employer within 90 days but, as much as she wanted to, she was unable to work due to her workplace injury. She wishes for her visa to not be cancelled so that she can remain in the country and complete her rehabilitation. She is not responsible for the circumstances leading to the breach.

10. The applicant provided copies of correspondence regarding her concerns about the inconsistencies between her PAYG payment summary income amount and her payslips. She also provided evidence from Work Cover NSW regarding her work limitations.

11. The delegate considered the material provided but decided to cancel the visa under s.116(1)(b) finding that the applicant had breach condition 8107 and, in exercising her discretion, she formed the view that the evidence weighed in favour of cancellation.

12. When making her application for review the applicant provided to the Tribunal written submissions in which she sets out the material provided to the delegate including more detail about her background, her family, the reasons for coming to Australia and her circumstances prior to the grant of the visa. She explained that she had been here as the holder of a student visa when in April 2015 her husband was offered a job at the Royal Danish Bakery. The employer offered to sponsor the applicant because her English was better than her husband’s however she knew that the applicant had limitations because of a shoulder problem. The sponsor agreed that the applicant could also manage the staff and sales and that her husband would bake, and that after 2 years she would sponsor them for permanent residence. She and her husband accepted this arrangement. The whole family started working for the business. They were working up to 90 hours a week as there were not sufficient financial resources to employ more staff. They were not paid overtime. The sponsor said, once they had their permanent residence, she would give them half the business. When the sponsor was overseas and the applicant managed the business she had to put money from her husband’s wages back into the business to pay staff and suppliers. The applicant raised with the sponsor her concerns and there was a period when she was not working in the business. Eventually the sponsor contacted the applicant and the applicant agreed to return to work. She and her husband expected that in November 2017 the sponsor would sponsor their permanent residence application. However the relationship continued to break down and she found emails that had been exchanged between the sponsor and other staff members regarding the applicant and the monies owed to her. She repeats the information regarding her decision to apply for a skilled visa. She also gives particulars regarding financial concerns about the running of the business. She explains that she lodged her tax return using a Statutory Declaration because her PAYG payment summaries from the sponsor for the 3 years of her employment recorded nil income.  

13. On 21 August 2017 the applicant was informed that the bakery was to be closed. On her arrival at work she was notified that the administrator, Henry McKenna, had control of the bakery. He explained that he would have to close the bakery to make a financial statement and after that he would contact them. He subsequently told them that the bakery would not reopen that they had lost their jobs but that they could apply to the Fair Entitlements Guarantee (FEG) to be paid. However she found out that she could not do this because she is not Australian. The union could not help them. The administrator organised for the business to be liquidated on 25 September 2017.

14. The applicant indicated that her surgery did not go well and she had to have another operation. After the liquidations she explained to the Department that she could not currently work as a baker. Her husband found a job in a bakery in Cammeray but he was not happy there as he was expected to work 55 hours per week. She then heard that the Department was considering cancelling the visa. Her husband decided to start his own business but because of their situation he cannot sign a lease. The family wish to remain in Australia where they have lived for the past 7 years. Her daughter is finishing her apprenticeship as a pastry chef and she has a boyfriend here. Her son is also in a relationship and they have opened the business together.  If the visa is cancelled the applicant will have to leave her children in Australia.

15. The applicant provided references including from former employers, colleagues, customers, and friends. She provided evidence regarding her pay by the sponsor and email exchanges between the sponsor and the applicant. She also provided bank statements of the business for the period March 2014 to December 2016 and information regarding the liquidation. She provided documentation regarding her daughter’s apprenticeship and information about her daughter’s employment by the sponsor. She also provided 241 pages of text conversations.

16. The applicant provided to the Tribunal updated information from WorkCover, a certificate of capacity progress dated 23 November 2018. It records that the applicant suffered a nail bed injury to her finger post operation on 2 May 2014. She also required surgery for right shoulder rotator cuff tendinopathy, and has bursitis and bicep tendonitis. The certificate indicates she has capacity for some type of employment from 26 November 2018 to 10 January 2019 but that she has limited capacity for lifting, carrying, pushing and pulling.

17. The applicant also provided to the Tribunal a letter dated 17 December 2018 from Andy Huynh, Director, Vicolo Market, Dee Why, in which he explains that he allows the applicants to sell their products within his store. He states that the applicants are well-regarded, hardworking, respectful and part of the community.

18. At the hearing the Tribunal explained to the applicant the law relating to s.116(1)(b) cancellations. The following is a summary of the oral evidence provided at the hearing.

19. With respect to the pages of text conversations, the applicant indicated that she provided that information so that the Tribunal could understand that since she has been in Australia she has always tried to do the right thing. She did her job well but despite this she cannot apply for permanent residence because of the consequences of her having lodged her tax returns by statutory declaration. She believes she has suffered the consequences of having drawn to ATO’s attention that the sponsor had not included her in the payroll system. The sponsor was not being honest with ATO. It took the applicant some time to realise that she was not on the sponsor’s payroll. When Fair Work contacted the sponsor she denied that the applicant had ever been working for her. Fair Work told her they could not help her. The applicant informed the Department, before the notice of intention to consider cancellation, about the liquidation and her work accident, and that she could not find another sponsor in the 90 day period.

20. The applicant also raised difficulties that she has had with the Department. She indicated that she wrote to the Department in December 2017 to inform them that the business was being liquidated. She did not hear back from them so in January 2018 she contacted the Department and they told her they could not find their file.

21. The applicant also told the Tribunal that her first born son died suddenly in France on 1 January 2013. He had an undetected congenital heart defect.  At the time she was on a bridging visa waiting for a Student visa application to be processed. She approached the Department and asked if she could go overseas to bury her son. Initially the officer refused to change her bridging visa to allow her to return if she left Australia. Eventually a more senior officer changed her bridging visa but this experience has made her subsequent contact with the Department very stressful.

22. The applicant confirmed that she was granted a Student visa in about May 2012 to enable her to study in Australia before applying for the Subclass 457 visa. She needed to improve her English. She was granted the Subclass 457 visa in November 2015.

23. The applicant confirmed that the sponsor’s business went into liquidation in September 2017. It had been closed down in August 2017. She had stopped working as a baker in February 2017 because of the shoulder injury however she had continued to work as a manager/administrator in the business as she had capacity to do this. Her shoulder injury prevented her performing the duties of a baker.

24. The Tribunal asked about the applicants’ current circumstances. She confirmed that she is currently not employed as her visa situation has made it difficult to find work. However she is permitted to work. She helps her husband who is trying to run a business. He has not been able to establish his own business as he cannot take out a lease because of his visa situation. They sell their croissants and other products from Thursday to Sunday at a fruit market in Dee Why, Viccolo. They live off that income plus their savings. They also deliver some of their products to cafes. They have a friend who allows them to use his commercial kitchen. She mainly performs administrative tasks as she cannot lift. Her daughter, the third named applicant, is completing her apprenticeship as a pastry chef. She should finish her course in July 2019. She lives with her parents on whom she is financially dependent. She has an Australian boyfriend. The family live in Dee Why and pay $2780 per month rent. They have lived in the same accommodation for 6 years. The applicant has attempted to find another sponsor however her shoulder injury limits her capacity. She believes that once she can work full-time with no restrictions she will easily find another sponsor. Her husband will not seek sponsorship because he does not have sufficient English.

25. The applicant believes that the sponsor liquidated the business to avoid paying her $65,000. She was not paying any of her employees correctly. The applicant confirmed that she ceased employment with the sponsor and did not return to that employment within 90 days.

26. The Tribunal noted that the applicant has expressed a wish to be granted permanent residence in Australia so that she can remain here. It explained however that the purpose of a Subclass 457 visa is to fill a temporary skill shortage. It explained that there is no guarantee that Subclass 457 visa holder will be granted permanent residence. It indicated that it may take this into account when exercising its discretion. The applicant indicated that she understands there was no guarantee she would be granted permanent residence. That is why she tried to get her RPL so that she could apply for a skilled visa. She paid a school to go through the process of having her prior learning recognised. After she demonstrated her skills she had surgery. She then found out the school went into liquidation. Her shoulder surgery was not successful and she could not go through the process of demonstrating her skills to another school. She then could not complete the permanent skilled visa application process. She believes however that while she cannot perform the duties of a baker she can train people. She is passionate about her profession and the quality of her work is very good. She does not want to return to France because she has now adjusted to living in Australia. She did not feel safe in France. They ran a restaurant in Montpelier and she was robbed. She wants to give her children a chance to live a better life.

27. The applicant explained that her adult son who is residing in Australia is the holder of a bridging visa, having made a partner visa application in July 2018. He has been in a de facto relationship with an Australian citizen for 18 months. Her daughter has been in a relationship with her Australian citizen boyfriend for 14 months. They both intend to remain in Australia permanently having lived here all their adult lives.

28. The Tribunal discussed with the applicant the matters set out in the Department’s guidelines. The applicant indicated the main reason she wishes to remain in Australia is that she now considers it to be her home. She returned to France in 2013 to arrange her son’s funeral. After 4 weeks she wanted to return to Australia. Her children are now here and they intend to stay. The third named applicant was 14 when she came to Australia and she now considers it to be home. She wants her daughter to complete her apprenticeship. She has to complete her rehabilitation for her work injury.

29. The applicant indicated that there have been no other concerns regarding compliance with visa conditions.

1. With respect to hardship, the applicant sustained a physical injury while working in Australia. She is currently being paid by GIO. She had surgery on her finger in December 2013 however this was not successful and she required further treatment because she could not use her hand. She then suffered an overuse injury in her right arm. There was some legal debate as to whether the second injury was related to the first injury. Four years later she is still dealing with this matter. She needed to have shoulder surgery but she kept working until February 2017. The surgery was not successful because this screw kept catching on the tendon so she had further surgery in September 2017. She still has some problems with her shoulder. She is not sure when she will be able to return to work. A visa cancellation will cause hardship because she will not be able to find suitable if she returns to France. They will also have difficulty securing accommodation. She will also be separated from her children as they now have partners here and both wish to remain in Australia. Also if the visa is cancelled her daughter, whose visa will be consequentially cancelled, will not be able to complete her apprenticeship and course.

   Assessment of the evidence

2. 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.

   Does the ground for cancellation exist?

3. 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. This condition requires, amongst other things, that the visa holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions), and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

4. The applicant was granted the Subclass 457 visa on 13 November 2015 on the basis of the approved nomination of Bread and Roses Pty Ltd, to work in the occupation Baker. Condition 8107 was attached to the visa.

5. For reasons discussed below the applicant ceased her employment with the sponsor in September 2017. She did not return to that employment. On the evidence before it the Tribunal is satisfied that the applicant ceased to her employment with the sponsor and the period during which she ceased employment exceeds 90 consecutive days. In these circumstances the Tribunal finds that the applicant has breached condition 8107(3)(b).

6. 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 visa should be cancelled.

   Consideration of discretion

7. 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’.

8. The Tribunal has first considered the applicant’s purpose for remaining in Australia. She now wishes to remain in Australia to be with her adult children who have both partnered with Australian citizens. She also wishes to remain here so that her financially dependent daughter, the third named applicant, can complete her course and apprenticeship as a pastry chef. She is also undergoing rehabilitation for a work-related injury. While she does not currently have a sponsor, she is confident that once she can return to the duties of a baker she will easily secure sponsorship. The Tribunal notes that she did not provide any evidence to support this claim. It notes she and her husband are currently selling their produce, at the Viccolo fruit market, and by delivering produce to cafes. Having considered this information, the Tribunal has some concerns that the applicant does not have a current sponsor to work in sponsored skilled employment. However it accepts that her capacity to secure sponsorship has been impacted by a work-related injury sustained in Australia. Overall the Tribunal gives the factors relating to her purpose for remaining here some weight in favour of not cancelling the visa.

9. The Tribunal notes that the applicant has not complied with condition 8107. There is no evidence before it to indicate that there has been non-compliance with other visa conditions. However the Tribunal notes the applicant continues to not be employed in accordance with the requirements of condition 8107. The Tribunal gives this factor some weight in favour of cancelling the visa.

10. With respect to the degree of hardship that may be caused by cancellation, the Tribunal is mindful that a visa cancellation may cause the applicant to be separated from her adult son who is not affected by this cancellation. The Tribunal accepts that he currently holds a bridging visa because he has made a partner visa application. It accepts that he intends to remain in Australia permanently to live with his de facto partner. They attended the hearing together. This is in circumstances where the applicant has tragically lost her oldest son as the consequence of an undetected heart defect. The Tribunal is of the view that, given these circumstances, it would cause significant emotional hardship for this family to be separated. The family would also suffer some financial hardship because they do not have employment and accommodation to return to in France. This is in circumstances where the applicant has already suffered some financial loss because she was underpaid by the sponsor. They have been able to maintain secure accommodation in Australia for several years. The Tribunal is also of the view that a cancellation would cause hardship for the third named applicant who is in the process of completing her apprenticeship as a pastry chef. A visa cancellation before July 2019 will impact on her ability to do this. The applicant may also suffer hardship because she will not be able to complete her rehabilitation for the work-related injury which is currently being supported by WorkCover. Overall the Tribunal gives these factors significant weight in favour of not cancelling the visa.

11. Regarding the circumstances in which the ground for cancellation arose, the Tribunal accepts that the applicant’s breach of condition 8107 was a consequence of the business going into liquidation and ceasing to trade. Having regard to the documents provided, the Tribunal is also satisfied that the applicant tried to pursue payments owed to her by the sponsor, and that the sponsor did not have her on the payroll. It is also satisfied that the applicant was honest with the ATO by lodging her tax returns by statutory declaration. This resulted in the ATO becoming aware that the sponsor had not been paying payroll tax correctly. The applicant is of the view this is one of the reasons the sponsor liquidated the business, along with the fact that she owed employees significant backpay. While the Tribunal cannot make definite findings that this was the case, it certainly appears to be plausible, having regard to all of the evidence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal is of the view that in this case those circumstances were beyond the applicant’s control. Accordingly it gives this factor significant weight in favour of not cancelling the visa.

12. The Tribunal notes that the applicant attempted to notify the Department, before she received the notice of intention to consider cancellation, that her sponsor had liquidated the business and she could not work because of her injury. It also notes that she informed ATO by statutory declaration of her correct income. She had nothing to gain from this honesty. In fact it led to the relationship with her sponsor deteriorating. The Tribunal is of the view the applicant has demonstrated that she is an honest and reliable witness. There is nothing to suggest that there have been any other concerns regarding her past or present behaviour towards the Department. Accordingly the Tribunal gives this factor some weight in favour of not cancelling the visa.

13. There are persons in Australia, the second and third named applicants, whose visas would be cancelled under s.140 of the Act. As discussed above, this would cause the third named applicant some hardship because she is completing an apprenticeship. It may also result in the second named applicant being separated from his adult son who has now made a partner visa application. The Tribunal gives this factor some weight in favour of not cancelling the visa.

14. As to whether there are mandatory legal consequences, if the visa is cancelled the applicant would become an unlawful noncitizen and would be required to depart Australia. This would result in her separation from her adult son who has made a partner visa application. She may also be affected by s.48 of the Act and this may affect her ability to apply for visas in the future. While this is the intention of the legislation, the Tribunal is mindful that this may result in her being separated from her surviving adult son and in the circumstances of this family, given the death of her firstborn son, this may have an unfair detrimental impact.

15. In relation to any other relevant matter, the Tribunal notes that the applicants have strong character references from friends, colleagues, customers and business associates. They are held in high regard by their community. This gives the Tribunal confidence that it can rely on the applicant’s oral evidence in relation to the circumstances leading to the breach of condition 8107 and other matters.

16. Overall the Tribunal is of the view there are strong reasons in favour of not cancelling the visa. The applicant’s family circumstances are such that she lives with the grief of losing her first born son. Her adult son in Australia has now decided that he wants to remain in Australia permanently to live with his Australian citizen partner. Her adult daughter also has an Australian citizen boyfriend and, having come to Australia as a teenager, now wishes to remain here. Her daughter is also in the process of completing an apprenticeship in Australia. The Tribunal also notes that the applicant is involved in ongoing rehabilitation for a work related injury sustained in Australia. The circumstances leading to the ground for cancellation arising were outside the applicant’s control. The Tribunal accepts that the applicant has also suffered some financial loss because she was not properly paid by her sponsor. A visa cancellation may impact on the applicant’s ability to apply for and be granted visas in the future. Her husband will also be adversely impacted by a visa cancellation. While the Tribunal notes that the applicant is not currently in sponsored employment and this factor weighs in favour of cancellation, it accepts that her ability to secure sponsorship has been impacted by her work-related injury. Overall the Tribunal is of the view that in this case the correct and preferable decision is to not cancel the visa.

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

    DECISION

18. 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.

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Denise Connolly
    Member