Khansorn (Migration)

[2019] AATA 4127

Khansorn (Migration) [2019] AATA 4127 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sirikun Khansorn
Mr Weerayut Pichaipittayathon
Mr Pariyawit Pichaipittayathon

CASE NUMBER:  1905676

HOME AFFAIRS REFERENCE(S):           BCC2018/5490339

MEMBER:Penelope Hunter

DATE:11 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 11 September 2019 at 10:04am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment with approved nominator –voluntarily left sponsor – visa ended when employment ceased – no jurisdiction in relation to second applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Condition 8107, r 2.79

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 March 2019 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107.

3. The issue in the present case is whether that 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 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.

5. The applicants appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s witness, Roberto Baliva. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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(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?

9. 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 was attached to the applicant’s visa.

10. Of relevance is condition 8107(3) which states:

    (3)If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder:

    (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)  unless the circumstances in subclause (3A) apply:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    ……..

    (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days; and

    .

11. The Tribunal is satisfied that 8107(3A) does not apply in this case.

12. The applicant was granted a subclass 457 visa on 5 August 2016 on the basis of an approved nomination by Lester P Holdings Pty Ltd, trading as Bondi Nuad Thai and Spa. The applicant was nominated in the position of Massage Therapist, and her visa was valid until 5 August 2020.

13. The Department received information that the applicant had been working for another employer, RBUY Pty Ltd trading as Wagga Thai Massage since 5 March 2017. On 30 January 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC).

14. In her written response to the NOICC, the applicant said that there had been a mutual separation from Lester P Holdings Pty Ltd, and that she had thought that her new employer would contact and update the Department.

15. On review, prior to the hearing, the Tribunal received a statutory declaration from the applicant, a statutory declaration of Roberto Baliva (director of RBUY Pty Ltd), a copy of the applicant’s letter of grant of the Subclass 457 visa dated 5 August 2017, copy of the Department’s letter to RBUY Pty Ltd notifying of refusal of the nomination application dated 16 February 2018, letter from the Tribunal acknowledging receipt of an application for you in case number 1806262.

16. The submissions from the applicant’s agent confirm that the applicant left her employment with Lester P Holdings Pty Ltd on 21 February 2017, and it was claimed that the Department and the previous migration agent of RBUY Pty Ltd did not inform the applicant that she was not allowed to work for RBUY Pty Ltd until their nomination was approved. The applicant, in her statutory declaration, and in evidence at the hearing, acknowledged that she had breached her visa condition, however she claimed that it was unintentional.

17. The Tribunal finds that the applicant ceased employment with Lester P Holdings Pty Ltd as at 21 February 2017. The Tribunal has considered that the applicant started employment with RBUY Pty Ltd within 90 days, however RBUY Pty Ltd was not, and is not, an approved standard business sponsor, and was not an associated entity of Lester P Holdings Pty Ltd.

18. Given the above, the Tribunal finds that the applicant ceased employment on 21 February 2017, and that the period during which the applicant ceased employment with a standard business sponsor exceeds 90 consecutive dates as required by condition 8107(3)(a),  exceeded 90 days. The Tribunal finds that the applicant has not complied with condition 8107(3)(b) of her Subclass 457 visa.

19. 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

20. 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’.

21. At the hearing the Tribunal discussed with the applicant, and her witness, the submissions and matters identified in the Department guidelines, and other relevant matters.

22. In summary, the applicant told the Tribunal that she had decided to leave Sydney as she wished to cut expenses, this was due to the high costs of living and difficulties with transport and childcare. She had discussed this with her employer at Lester P Holdings Pty Ltd, and they referred to her to RBUY Pty Ltd. She was successful in obtaining a position with RBUY Pty Ltd and moved to Wagga Wagga with her family. The applicant claimed that she was not aware that she was not allowed to work for another employer after ceasing her employment with Lester P Holdings Pty Ltd. The agent who had lodged her subclass 457 visa application had not communicated this to her. The next agent that she instructed through RBUY Pty Ltd also did not inform her that she would not be complying with her visa condition if she worked for RBUY Pty Ltd before their nomination was approved. The applicant was also relying on correspondence that she received from the Department with her subclass 457 visa grant notification, which had instructed her only that she had to “find another employer who is willing to nominate you” within 90 days of ceasing employment. The applicant had assumed that as RBUY Pty Ltd had lodged a nomination within the 90 day period she had complied with her visa condition. It was further claimed that the applicant’s breach was unintentional and if the nomination by RBUY Pty Ltd had been approved in a timely manner, the applicant’s visa would not be subject to cancellation.

23. The Tribunal has first considered the purpose of the applicant’s stay and travel in Australia. The applicant initially travelled to Australia as a student. She claimed that she had been in Australia for 11 years and was intending to apply for permanent residency. However relevant to her current visa, she was granted the subclass 457 visa for the purpose of working as a massage therapist with Lester P Holdings Pty Ltd. The Tribunal considered that the purpose of the applicant’s visa is work for an approved sponsor in an approved occupation. The purpose of the applicant’s 457 visa ended when the applicant’s employment with Lester P Holdings Pty Ltd ceased.

24. The Tribunal considered the applicant’s claim that her previous agents had not told her of the requirement to have the nomination approved before she commenced work with RBUY Pty Ltd. The Tribunal asked the applicant whether she should have made enquiries about the actual conditions of her visa with the relevant agents, and she responded that she did not think to. The Tribunal acknowledges that the applicant may not have been aware of the operation of conditions attached to her visa grant, although she was aware the grant was subject to conditions, and it is considered that it would have been reasonably prudent by the applicant to make enquiries. The Tribunal has considered the evidence that the nomination application was lodged by her current employer in respect of her position as a massage therapist on 4 April 2017, and that this was within 90 days of her ceasing employment with Lester P Holdings Pty Ltd. However, this has not been approved and it was revealed at the Tribunal hearing that a possible reason why the application was not approved in a timely manner was that RBUY Pty Ltd was subject to monitoring by the Department. This application was refused on 16 February 2018 and an application for review has been lodged with the Tribunal on 8 March 2018, and that review is still pending. Since 21 February 2017 the applicant has not been complying with the condition of her visa. The applicant claimed that she could not go offshore while awaiting review by the Tribunal because her son was enrolled in school in Australia. The applicant did accept that her son could attend school in Thailand but claimed that this would be disruptive. The Tribunal has considered that over two and a half years the applicant has not been satisfying the purpose of the 457 visa program by working for an approved nominator in a nominated position.

25. Further, as a consequence of information disclosed at the hearing the Tribunal reviewed the ISCE records of RBUY Pty Ltd. The Tribunal wrote to the applicant pursuant to s. 359A of the Act following the hearing and provided information that as a consequence of the Departmental monitoring a 12 month sponsorship ban was imposed on RBUY Pty Ltd from 19 April 2019. The Tribunal considered that this information was relevant because in order for the nomination application to be approved RBUY Pty Ltd must satisfied r. 2,72,(9) of the Regulations which required that there is no adverse information known to Immigration about RBUY Pty Ltd or persons associated with RBUY Pty Ltd, or that it was reasonable to disregard such information. Again, pursuant to s.359A of the Act, further information was put to the applicant in the letter that at the Tribunal hearing, the applicant’s witness, Mr Baliva had told the Tribunal that the Department had made findings about the failure to pay penalty rates to staff of RBUY Pty. The Tribunal considered that this information was also relevant because the failure to pay penalty rates was information adverse to RBUY Pty Ltd, further information of provided by Mr Baliva at the hearing regarding the Department findings indicated that RBUY Pty Ltd may not comply with workplace relations laws and employ staff on terms and conditions less favourable that those that are provided or would be provided to an Australian citizen or permanent resident, which was a criteria relevant to the approval of the nomination application under r. 2.79(10)(c) of the Regulations. The Tribunal has considered the statutory declaration of Rebecca Baliva, and letter from Navigate Advisors submitted in response to the information on 21 August 2019. Particularly, the acknowledgement of deficiencies in the record keeping of RBUY Pty Ltd, the details of particular issues and the submission that RBUY Pty was not a large corporation and Mr Baliva manages various businesses, that the failures were unintentional and that unidentified steps have been taken to rectify matters. However, the applicant would have the Tribunal accept that the approval of RBUY Pty Ltd’s nomination is imminent upon review by the Tribunal. The information indicates that in addition to the reasons for the nomination refusal by the Department, there are further grounds for refusal, and that approval of RBUY Pty Ltd’s nomination application is highly speculative. Further there is nothing to indicate that while RBUY Pty Ltd is subject to a sponsorship ban until March 2020, the nomination application will be approved in the foreseeable future. In reviewing these circumstances the Tribunal does not consider that the applicant will be in a position to fulfil the purpose of the grant of the 457 through her employment with RBUY Pty Ltd in the reasonably foreseeable future, if at all.

26. The Tribunal is not satisfied that the applicant’s strong desire to remain permanently in Australia outweighs the above considerations in favour of cancelling the visa.

27. The Tribunal next considered the applicant’s compliance with visa conditions. The Tribunal has found on the applicant’s evidence that she commenced work with another employer, RBUY Pty Ltd as a massage therapist in March 2017. The Tribunal considered that from March 2017 to the date her visa was cancelled, 4 March 2019, she was the holder 457 on the basis of a nomination by Lester P Holdings Pty Ltd, and throughout this time she was aware that a nomination by RBUY Pty Ltd in respect of her had not been approved, and while the nomination application was pending for review by the Tribunal it was still not approved. There is no evidence of any other non-compliance with visa conditions. The Tribunal has considered the applicant’s evidence that she was not unaware of the circumstances of non-compliance and it accepts this, however it does not overcome the breach of condition 8197(3), nor does it mean that the applicant is complying with that condition. It has been over two and a half years since the applicant was working in sponsored skilled employment as the subject of an approved nomination. However unintentional, the Tribunal considers that a breach of condition 8107(3) to be serious as it goes to the core purpose of the visa. The Tribunal has given this aspect significant weight in favour of cancellation.

28. The applicant submitted that she would experience severe hardship if the visa was cancelled because she had been living in Australia for 11 years and intended to apply for permanent residency. After the amount of time she had spent onshore she claimed that it would be very hard to go back to Thailand. The applicant and her husband would have to find jobs and she considered that she would have to start all over again. She claimed that in Thailand the income for massage therapists was low and they are more respected in Australia. The Tribunal raised with the applicant that the costs of living were also less, the applicant agreed but still submitted that she could provide better for her son in Australia. She was also concerned that her son would have to change schools. It is accepted that there will be consequences for the applicant if the visa is cancelled. Further, that it would be disruptive to the applicant and her family if the visa is not granted, and they returned to Thailand, and this would involve considerable adjustment to their planned future.  However, Thailand is her country of origin, the applicant confirmed that she had family there is the form of her parents and older sister, together with her husband’s family. The Tribunal is not satisfied that the applicant or her husband would be unable to find employment and provide for themselves. It is also considered that the subclass 457 visa is a temporary visa, while it may provide a pathway to a permanent visa did not of itself guarantee the right of the applicant to remain permanently in Australia. Accordingly, it does not consider this a significant reason for not cancelling the visa, as suggested by the applicant.

29. The Tribunal has next considered that the ground for cancellation arose because the applicant ceased employment with Lester P Holdings Pty Ltd, her approved sponsor for over 90 consecutive days. The Tribunal is satisfied from the evidence of the applicant although she did not intend to breach her visa condition, her decision to leave her approved sponsor was voluntary. It is accepted that she has made attempts to secure sponsored employment with RBUY Pty Ltd, yet once more it is over two and a half years since she ceased employment with Lester P Holdings Pty Ltd. The Tribunal acknowledges that RBUY Pty Ltd is seeking a review of the Departmental decision to refuse nomination application. Yet this review process could take some time, and as discussed above there is nothing before the Tribunal to indicate that the nomination application, of which the applicant is subject will be approved in the reasonably foreseeable future. The applicant has also been given significant time since the NOICC of the Department in January 2019, and she has continued to work onshore for RBUY Pty Ltd, and has not attempted to depart while awaiting review or gone on to secure sponsored employment elsewhere.

30. The applicant indicated that there have been no issues in relation to her conduct towards the Department. The delegate’s decision record indicates that she has been cooperative in providing information to the Department when requested. The Tribunal gives this some weight in favour of not cancelling the visa.

31. The Tribunal has considered, and accepts that the cancellation of the applicant’s visa, led to the consequential cancellation of the visas held by the applicant’s spouse and child. Further this will impact upon the applicant’s desire to raise and educate her son in Australia. However, it is the intended consequences of the legislation that members of the same family have the same visa status. This prevents a visa cancellation from breaking up the family unit. The Tribunal gives limited weight to this factor in its considerations.

1. The Tribunal has considered the mandatory legal consequences of cancellation. The applicant’s visa was cancelled on 4 March 2019. While awaiting review the applicant is on a bridging visa which provides her with permission to continue work. The Tribunal accepts that if the visa is cancelled the applicant will be affected by s. 48 of the Act and she will have limited options for making a valid visa application in Australia without the intervention of the Minister. If the visa is cancelled, the applicant will not have to depart Australia immediately and she can apply for a further bridging visa to arrange her departure. The Tribunal is of the view that the applicant will only be subject to detention if she is not successful in being granted another visa and she exhausts any other visa options and then decides to remain in Australia unlawfully. The applicant has given evidence that she has to date complied with conditions of her visas while in Australia, and there is no evidence to indicate that she would not comply in the future. The Tribunal gives limited weight to this factor.

2. There is limited evidence before the Tribunal to suggest that international obligations would be breached as a result of the cancellation in the circumstances of this case. The applicant has family in Thailand, and she has not claimed that she has any fear of harm on returning for herself, her spouse or child.

3. The Tribunal has carefully considered and weighed up all of the evidence in this case. The Tribunal acknowledges that the applicant wants the Tribunal to set aside the cancellation as this would be more favourable to her immigration record and the current nomination application awaiting review. The Tribunal also acknowledges that the applicant has been cooperative with the Department, that she unintentionally breached the visa condition, and that she had sought another nominated position with RBUY Pty Ltd. While these factors weigh in favour of not cancelling the visa, the Tribunal gives more weight to the other factors, and in particular that the applicant has not been fulfilling the purpose of the subclass 457 visa and has not demonstrated that she will be in a position to satisfy that purpose in the reasonably foreseeable future.

4. The Tribunal has taken all of the oral and written evidence into account and overall the Tribunal is of the view, in the circumstances of the applicant’s case that the evidence weighs in favour of cancelling the visa.

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

   Penelope Hunter
   Member