Kozmanyan (Migration)

[2019] AATA 2467

Kozmanyan (Migration) [2019] AATA 2467 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hasmik Kozmanyan

CASE NUMBER:  1837243

HOME AFFAIRS REFERENCE(S):           BCC2018/4448632

MEMBER:Mr S Norman

DATE:4 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2019 at 10:40am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – working unlawfully in Australia – consideration of discretion – purpose of stay – pursue Fair Work Ombudsman complaint – no timeframe for resolution – circumstances in which the non-compliance occurred – unfair dismissal – awarded compensation by order of the Fair Work Commissioner – benefit by returning to family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 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 17 December 2018 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 delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant was determined to have breached condition 8107 (discussed below). 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 1 July 2019 to give evidence and present arguments.

4. 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

5. 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) of the Act. 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.

   Section 376 Notice

6. The Department file contained a s.376 notice.[1] That related to advice received about the applicant working unlawfully in Australia. However, at hearing and without prompting, the applicant volunteered that she had been able to engage in other employment (after being unfairly dismissed by her former sponsor). In the circumstances, the Tribunal is satisfied the material information referred to in the s.376 notice, was independently put to the Tribunal for its consideration.

   [1] Department – folio 45.

   Does the ground for cancellation exist?

7. 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. Condition 8107(3)(a) & (b) stated (in part):

   8107 (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) (as in force before 18 March 2018):

   (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
   (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside 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;

   …..

   (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive day …  

8. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 11 August 2015. By Notice of Intention to Consider Cancelling (NOICC[2]) that visa dated 22 November 2018, the applicant was advised that information before the Department included that the applicant’s standard business sponsor was Platinum K2S P/L  - ATF The Platinum KS Trust (sponsor). The sponsor’s standard business nomination was approved on 11 August 2016. However, on 21 March 2018 the Department was advised the applicant had ceased employment with the sponsor, effective from 12 March 2018. In the NOICC, the applicant was advised that condition 8107 attached to her visa, and that the exemption in condition 8107(3A) did not apply (as her occupation was not specified as being exempt in an instrument in writing). Further, that she may not meet condition 8107(3)(a)(ii). Also, in order for the applicant to be able to lawfully work for another sponsor in Australia, she would first need to lodge a new Temporary Business Entry Nomination application related to herself, and for the Department to approve this. There was no evidence of same.

   [2] Department – from folio 25. 

9. The Tribunal notes that changes to condition 8107 were made on 19 November 2016. These reduced the time period that the holder of a Subclass 457 visa can remain in Australia after ceasing employment with their sponsor from 90 days to 60 days. However, this amendment applies to visas granted on or after 19 November 2016[3]. The present applicant has 90 days, as her Subclass 457 visa was granted prior to 19 November 2016.

   [3] Condition 8107(3) amended by Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 (F2016L01696).

10. As the delegate was satisfied the applicant had ceased her employment with her sponsor for more than 90 consecutive days, she was determined to have breached condition 8107(3)(b) which had been attached to her visa; and her visa was cancelled pursuant to s.116(1)(b) of the Act.

11. In her response to the NOICC, the applicant did not dispute she had ceased employment with her sponsor for more than 90 consecutive days. When discussed at the hearing, the applicant also agreed she had ceased her employment with her sponsor for more than 90 consecutive days.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, 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

13. 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’.

14. Regarding the purpose of the (Armenian citizen) applicant’s travel to and stay in Australia, the applicant said she arrived in Australia around February 2013 on a Temporary Business visa. She was then granted a second Temporary Business visa on 11 August 2015. The Temporary Business visa allows non-citizens to travel to and reside in Australia for the purpose of work.  However, on 21 March 2018 the sponsor advised the Department the applicant had ceased work with them on 12 March 2018. Therefore, the purpose for which the applicant was granted her visa ended on or around 10 June 2018 (being 90 days after she ceased employment with her sponsor).

15. As referred to below, the applicant subsequently appealed her dismissal by her former sponsor and was awarded ‘compensation’, which was granted by order of the Fair Work Commissioner dated 17 August 2018. However, the applicant now wishes to remain in Australia, in order to pursue a complaint with the Fair Work Ombudsman. The Ombudsman complaint relates to whether or not the applicant (and other employees) were paid for the overtime they had claimed to have worked. The Tribunal said it understood the Ombudsman was only able to make (principally) a recommendation about this issue, though the applicant thought they may make orders (the Ombudsman does have some compliance/enforcement powers[4]). Be that as it may, and though she intends to return to her family in Armenia when this occurs, the applicant was not aware of when the resolution of the Ombudsman complaint would occur. In the circumstances, the Tribunal is not satisfied the applicant proposes to remain in Australia, for the purpose identified by the Temporary Work visa.

    [4] Fair Work Ombudsman, accessed 1 July 2019.

16. Next, the applicant was found not to have complied with condition 8107(3)(b); as she had ceased employed with her sponsor for more than 90 consecutive days (and the reasons relating to this have been discussed herein).  

17. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, at hearing she said that her father had passed away, that her mother lives and works (in hospitality) in Moscow, and that her brother lives and works (in construction) in Armenia. The applicant also said she is able to remit some monies to her grandparents in Armenia, from time to time. In an undated statement,[5] the applicant also said she was ‘mentally and emotionally broken’ by her circumstances, but she had not looked for other employment or an alternate visa as she would like to return to her home country and ‘start again’. She did however, request a ‘fair go’ with respect to her employment rights in Australia.

    [5] Tribunal – from folio 119.

18. The Tribunal noted that from the time the applicant ceased her work with her former sponsor (she said it was 5 March 2018), until she was awarded ‘compensation’ by the Fair Work Commissioner (on 17 August 2018), the applicant’s grandparents were able to live in Armenia without apparent assistance (as the applicant was not able to work during this period). The applicant did say she sent her grandparents some money after she was awarded the compensation by the Fair Work Commissioner. However, the applicant still intended to return to Armenia when the Ombudsman complaint in Australia was resolved; though she felt obligated to pursue this complaint on her own behalf, and on behalf of other employees who were also ‘cheated’ by her former employer. The applicant explained that of the six employees ‘cheated’, only she and one colleague were pursuing the Ombudsman case. The Tribunal suggested she may be able to pursue this case remotely (in Armenia), but the applicant believed she would be better placed to pursue the Ombudsman complaint in Australia. The Tribunal therefore accepts that if the applicant’s visa is cancelled, she may be prevented from as effectively pursuing the Ombudsman complaint.  

19. The Tribunal also accepts that if her visa is cancelled, the applicant may not be able to remit monies to her grandparents in Armenia. However, given the applicant wishes to return to her family in Armenia after the Ombudsman complaint is resolved, the Tribunal does not accept this would constitute a hardship for her.   

20. Regarding the circumstances in which the ground of cancellation arose, by email dated 23 November 2018,[6] the applicant said she had not been working with her sponsor since around “March” as she was unfairly dismissed. The applicant also said she had been engaged in an unfair dismissal case with the Fair Work Commissioner (evidence relating to same had been lodged[7]) however that case was (at that time) still in progress. She eventually intends to return to her home country.[8] She did request time to finalise the Fair Work case.  She had said that her nominated wage was only paid if she worked considerably more time than had initially been agreed. The applicant said she had also initially been too afraid to complain otherwise she may lose her visa (and she had considered applying for a permanent visa).

    [6] Department – folio 27.

    [7] Tribunal – from folio 118.

    [8] Department – folio 27.

21. However, the evidence before the Tribunal is that the Fair Work Commissioner case was resolved by order dated 17 August 2018.[9] Amongst other things, it was found that the applicant had been unfairly dismissed, and the applicant was to be paid a net amount of $12,295.62 within the next 14 days.[10] At hearing, the applicant agreed this money was paid.

    [9] Tribunal – from folio 45.

    [10] Tribunal – folio 36.

22. In a subsequent undated statement,[11] the applicant provided more complaints about her former employer; her period of employment; her dismissal; her residence; and her unfair dismissal case.[12] The applicant also claimed to have paid for her visa sponsorship[13] (though at hearing she agreed she meant she had been forced to work unpaid overtime) and she lodged other evidence which has not been expressly referred to herein.

    [11] Tribunal – from folio 119.

    [12] Tribunal – from folio 119.

    [13] Tribunal – folio 101.

23. When then discussed at hearing, the applicant explained she was also pursuing a complaint with the Fair Work Ombudsman. As noted above, that related to herself and five other employees being ‘cheated’ by (ie) non-payment of overtime. Only the applicant and one other colleague were pursuing the Ombudsman case.

24. However, and given the applicant conceded both in writing and orally at the hearing, that she was ‘mentally and emotionally broken’ by the case, and given she was now proposing to return to Armenia, the Tribunal put to her it may be satisfied it would be better for her health and future career, if she more quickly returned to Armenia where she could reside with and receive the guidance of, her family. The applicant repeated that she wanted to pursue the Ombudsman complaint, but respectfully, and notwithstanding the applicant was unfairly dismissed, the Tribunal is satisfied the applicant would benefit by now returning to her family in Armenia. Furthermore, and after considering all the findings herein, the Tribunal is not satisfied there are any compelling reasons for the applicant to now travel to or reside in Australia.

25. Next, there is no evidence the applicant has been unco-operative with the Department or the Tribunal. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

26. Next, if the applicant’s Temporary Work visa is cancelled, she may become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, the Tribunal is not satisfied she would be subject to indefinite detention. Further, based on the evidence, the applicant should be able to temporarily retain her Bridging visa and remain in the community in order to finalise her affairs prior to departing.

27. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she might not be granted a temporary visa for three years from the date of cancellation. 

28. After then considering all the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member