Konena (Migration)

[2023] AATA 1688

Konena (Migration) [2023] AATA 1688 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Melvin Konena

REPRESENTATIVE:  Mr Edward Von-Shoostov Nalbandian

CASE NUMBER:  2214707

HOME AFFAIRS REFERENCE(S):          BCC2022/145986

MEMBER:Andrew McLean Williams

DATE:6 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

Statement made on 06 June 2023 at 1:42pm

CATCHWORDS

MIGRATION – cancellation – Temporary Work (International Relations) (Class GD) visa – Subclass 403 (Temporary Work (International Relations)) – Pacific Australia Labour Mobility Scheme – applicant ceased employment – applicant claimed forced resignation – financial hardship – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8611; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 29 September 2022 to cancel the Applicant’s Subclass 403 (Temporary Work (International Relations)) visa, pursuant to s.116 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Delegate cancelled the visa under s.116(1)(g), on the basis that a ‘prescribed ground’ for cancellation was applicable to the Applicant; and because the grounds for cancellation were assessed as not outweighed by any contrary reasons, to not cancel the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should still be cancelled.

4. The Applicant appeared before the Tribunal on 19 May 2023 to give evidence and make submissions.

5. The Applicant was represented in relation to this review by his solicitor, Mr Edward Von-Shoostov Nalbandian of ‘The Immigration Lawyers’, Leichhardt, NSW.  Mr Nalbandian also attended the Tribunal hearing on 19 May 2023, by means of videolink from Sydney, and had provided written submissions prior to the hearing (those dated 18 May 2023), and was afforded leave at the conclusion of the hearing to make further submissions, and to submit additional documentary evidence. 

6. These additional materials were received by the Tribunal on 5 June 2023, and have now been considered by the Tribunal as part of its deliberations in preparation of these reasons for decision.  For the reasons that are now set out further below, the Tribunal has determined that the decision to cancel the Applicant’s visa should be affirmed by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the Applicant. The prescribed grounds for cancellation are set out in regulation 2.43 of the Migration Regulations 1994 (‘the Regulations’).

9. In the present case, the ground in regulation 2.43(1A)(a) becomes relevant.  Regulation 2.43(1A)(a) provides:

   (1A)For paragraph 1(ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of the grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:

   (a)The visa holder’s visa was granted.

10. On 20 January 2020 the Applicant had lodged an application for a Temporary Work (International Relations) (subclass 403) visa under the Pacific Australia Labour Mobility Scheme, based on an offer of employment as a broccoli picker, working for Patane Produce (WA) Pty Ltd (‘the visa application’).  Condition 8611, which is applicable to subclass 403 visas, provides that if the subclass 403 Visa is in the Pacific Australia Labour Mobility Stream, then the visa holder must not work, other than for the visa holder’s sponsor in relation to granting of the visa. 

11. The visa application was approved on 29 January 2020, and was granted to the Applicant on the basis that the Applicant would thereafter remain working for his sponsoring employer, Patane Produce (WA) Pty Ltd.

12. On 20 January 2022 the Department was notified that the Applicant was about to cease his employment with Patane Produce (WA) Pty Ltd, having voluntarily resigned, with a last day of employment notified to the employer as being 31 January 2022.

13. As the Applicant would no longer be working for his sponsor, it appeared that he no longer had a genuine intention to stay temporarily in Australia to carry out the employment which was the very reason why the visa had been granted. Accordingly, on 25 August 2022, the Department sent to the Applicant a Notice of Intention to Consider Cancellation (‘NOICC’), inviting submissions from the Applicant prior to it doing that.

14. The Applicant did respond to the NOICC, on 9 September 2022, and on 10 September 2022. In his NOICC response, the Applicant attempted to persuade the Department not to cancel his visa, submitting that he had been forced to resign from Patane Produce (WA) Pty Ltd, wholly against his wishes; that members of his family in Papua New Guinea remained dependent on him for financial and other support; and that he did not wish to return to Papua New Guinea because it was not safe for him to be able to do that.

15. Ultimately, after considering matters, on 29 September 2022 the Delegate determined that a ground for cancellation under section 116 had been made out, and that the proffered reasons as to why the visa should not be cancelled were insufficient to outweigh the ground for cancellation; such that it was appropriate for the visa to be cancelled (‘the visa cancellation decision’).

16. The Applicant commenced this application for review before the Tribunal on 6 October 2022.  The question as to whether the Applicant’s visa should be cancelled must now be re-considered by the Tribunal, de novo.

17. The Applicant appeared before the Tribunal on 19 May 2023 and is accepting of the bare fact that he is now no longer employed as a broccoli picker by Patane Produce (WA) Pty Ltd, and that he has not worked for that company since January 2022. 

18. The Applicant submits that, notwithstanding the cessation of that employment, and for reasons that are elaborated further below, the discretion in s.116 to not proceed and cancel the visa should be exercised by the Tribunal in his favour.

19. The Applicant’s visa was approved on the basis that he would continue during the tenure of the visa to evidence an intention to remain in Australia only temporarily in order to undertake employment by Patane Produce (WA) Pty Ltd.  In January 2022 the Applicant had written a resignation letter which specified, inter alia:

    Please accept this letter as a formal notice of my resignation from my job as a broccoli picker at Patane Produce. My last day of employment will be 31 January 2022.

20. Prima facie, the resignation letter affords grounds to show that the Applicant had ceased to hold a genuine intention to stay temporarily in Australia for purposes of carrying out the work which was the reason why the Visa had been granted. For these reasons, the Tribunal is satisfied regarding the ‘threshold issue’: that the putative ground for cancellation under s.116(1)(g) of the Act does exist.

21. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must therefore proceed to the next step, and consider whether the visa should be cancelled, as part of an exercise of the discretion in s.116.

    Consideration of the discretion

22. There are no matters specified in the Act or Regulations that must be mandatorily considered in the exercise of this discretion. The Tribunal has had regard to the general circumstances of this case, including matters raised by the Applicant, and matters in the Department’s Procedures Advice Manual (‘PAM3’), ‘General visa cancellation powers’.

23. Under the PAM3, decision-makers are advised to consider the following:

    (a)the purpose of the Visa holders’ travel to, and stay in Australia;

    (b)the extent of compliance with the visa conditions;

    (c)the degree of any hardship that may be caused to the Visa holder, or to any family members;

    (d)the circumstances in which the ground for cancellation arose;

    (e)the Visa holders’ past and present behaviour towards the Department;

    (f)whether there are mandatory legal consequences, flowing from a cancellation decision; and

    (g)any other relevant matters.

(a)     the purpose of the Visa holders’ travel to, and stay in Australia

1. The Applicant was granted the visa specifically in order to work for his sponsoring employer, Patane Produce (WA) Pty Ltd. Therefore, the Tribunal considers that significant weight must attach to this consideration in support of a decision cancelling the Visa.

(b)     the extent of compliance with the visa conditions

1. There is no information before the Tribunal to suggest that the Applicant has not complied with any of the other conditions attaching to the visa. The Tribunal gives this consideration some weight in favour of a decision not to cancel the visa.

(c)     the degree of any hardship that may be caused to the Visa holder, and any family members

1. In his NOICC response, and now again before the Tribunal, the Applicant submits that his family is dependent upon him for financial and other support, and that his family will be adversely impacted if his visa is cancelled, and that it is “not safe” for him to return to Papua New Guinea.  No evidence has been produced by the Applicant to show either the fact, or extent, of any financial remittances by him to Papua New Guinea in support of other family members.  Nevertheless, the Tribunal accepts that this assertion of financial support is plausible, such that this consideration is now given some weight by the Tribunal in favour of a decision against cancelling the visa. 

(d)     the circumstances in which the ground for cancellation arose

1. The Applicant claims that he was bullied into resignation by “Karen”, a human resource representative in the employ of Patane Produce (WA) Pty Ltd, in circumstances wherein Karen had falsely accused the Applicant of causing damage to a wall in staff accommodation premises.  The Applicant claims that this damage was caused by another employee, who had avoided responsibility, by falsely accused him.  The Applicant further claims that, despite his protestations of innocence, he was forced by Karen to write and submit a letter of resignation.

2. During the Tribunal hearing, it was put to the Applicant that he had hand-written and signed a letter of resignation, and there was no extrinsic evidence (beyond his own contention) now in support of his claim that he had been forced to resign.  It was put to the Applicant that it was difficult to understand why he had not refused to both write and sign a resignation, and why he had not sought to make a complaint about his constructive dismissal, if what he now claimed was in fact true.

3. In response to those matters, both the Applicant, and his solicitor Mr Nalbandian, were adamant that such evidence existed.  In particular, Mr Nalbandian claimed the Applicant to have a covert telephone recording of a conversation between the Applicant and another co-worker whom had been the actual culprit for the damaged wall.  In light of same, the Applicant was afforded leave to submit further evidence, and submissions.

4. On 5 June 2023 the following further documents were submitted to the Tribunal:

   (i)Post-hearing submissions dated 2 June 2023 (comprising 16 paragraphs);

   (ii)Attachments 1 - 3 to the submission (comprising 19 pages);

   (iii)“Transcript of audio recording (evidence)” (4 pages);

   (iv)An MP3 audio file (the recording transcribed at (iii), above).

5. In the post-hearing submissions (i), Mr Nalbandian submits that the Applicant did not make a complaint to Fair Work Australia or to any employment ombudsman “as the evidence on face value framed the [Applicant] as having voluntarily resigned”. 

6. Mr Nalbandian submits that the HR Manager named Karen failed to properly investigate the circumstances giving rise to the damaged wall, yet absolutely no evidence for that has been provided.  The submission also asserts that the employer failed to give the Applicant reasonable notice of termination, yet that submission fails to come to grips with the fact that notice requirements are not imposed on an employer, in the case of a resignation by the employee.  Nothing in the submission advances the Applicant’s contentions.

7. Attachments 1 – 3 (item ii) above, is comprised by (1), a copy of the Applicant’s hand-written resignation letter; (2), a copy of the transcript, also now produced as item (iii) above, and (3), screenshots of text messages revealing how the Applicant recently obtained a copy of documents held by his former employer.  Nothing more needs to be said by the Tribunal in relation to these attachments in this exegesis of reasons.

8. Items (iii) and (iv) above are appropriately dealt with by the Tribunal together.  The Tribunal has now read the transcript (typed by Mr Nalbandian), as well as listened to the accompanying audio file.  Although the provenance of the audio file has not been explained, nor even satisfactorily proved by the Applicant, on its face it suggests the Applicant to be asserting (to an unknown co-worker identified only as “Chrisnil”) that the Applicant “did not know” who had damaged the wall, and that Chrisnil “did not know”, either.  In the Tribunal’s assessment this is equivocal information, neither confirming nor contradicting the contention that the Applicant had been bullied into a resignation, and is not evidence that supports the prior claims made by Mr Nalbandian during the hearing on 19 May 2023 regarding the existence of supportive evidence. 

9. The Tribunal is completely unpersuaded by the further information and submissions and now accepts the resignation letter at face value: as showing evidence of a voluntary intention by the Applicant to cease to have the intention necessary for purposes of regulation 2.43(1A)(a): “a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holder’s visa was granted”. Significant weight is now attached to that assessment by the Tribunal in favour of a decision to cancel the visa.

(e)     the Visa holders’ past and present behaviour towards the Department

1. There is no information before the Tribunal to indicate any specific matters of relevance regarding the Visa holders past and present behaviour towards the Department.  The Tribunal takes that into account, and now gives this consideration some weight against cancelling the Visa.

(f)     whether there are mandatory legal consequences to a cancellation decision

1. Departmental records indicate that the Applicant has no dependent family members whose visa would be cancelled under s.140, in consequence of the Applicant’s visa cancellation. No weight can attach to this consideration.

2. If the visa is cancelled, the Applicant will become an unlawful non-citizen in Australia and may become liable to detention under s.189, and removal under s.198, if he does not voluntarily depart Australia. The Applicant will also be potentially impacted by s.48, which would result in his having limited options for applying for further visas whilst in Australia.  The Applicant may also be impacted by Public Interest Criterion 4013 (‘PIC 4013’), which may prevent him from being granted further particular temporary visas, for a specific period. The Tribunal now gives these considerations some further weight against cancelling the Visa

(g)     any other relevant matters

1. In his NOICC response, the Applicant had stated that he does not wish to return to Papua New Guinea on the basis that it is not safe to do so. The applicant is not lodged an application for a protection visa. Cancellation of this Visa will not prevent the applicant from lodging an application for a protection visa. As such the tribunal does not consider that cancellation of the Applicant’s Visa would be in breach of Australia’s international non-refoulement obligations and the Tribunal is unable to give any weight to this consideration.

2. Considering all of the circumstances as a whole, the Tribunal concludes that the discretionary factors in support of a decision not cancelling the visa do not outweigh considerations in support of a requirement that the visa be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

   Andrew McLean Williams
   Member