Louw (Migration)

Louw (Migration) [2019] AATA 899 (6 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jason Gareth Louw
Mrs Kirsty Louise Louw
Master Ethan James Dawe
Master Cuan Cole Duncan
CASE NUMBER:  1719288
HOME AFFAIRS REFERENCE(S):           BCC2017/1167189
MEMBER:Antonio Dronjic
DATE:6 February 2019
PLACE OF DECISION:  Melbourne
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 06 February 2019 at 5:11pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – work only in occupation listed in most recently approved nomination – ICT Customer Support Officer – carried out work as a Branch Manager – consideration of discretion – purpose of a Subclass 457 visa – ceased employment with sponsor – extent of non-compliance – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 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

This is an application for review of a decision dated 17 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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).
The delegate cancelled the visa under s.116 (1)(b) of the Act. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as an ICT Customer Support Officer, but has carried out work as a Branch Manager. The delegate found that the applicant had breached condition 8107 which is attached to the applicant’s visa by specifically breaching condition 8107(3)(a)(i).
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.
Background to the cancellation of the applicant’s visa
The primary decision record of 17 August 2017, provided by the applicant to the Tribunal with the review application sets out the reasons for the delegates’ decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 30 October 2013, the applicant was granted a Subclass 457 Business (Long Stay) visa for the period of four years;
·The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa (15 October 2013) was Iris Contractors Pty Ltd T/AS Tyreright Wangara Refit Tyers (the sponsor). The occupation listed for the applicant in the most recently approved nomination was ICT Customer Support Officer;
·On 4 April 2017, a check of the applicant’s LinkedIn profile revealed a list of his work experiences which included a position of a Branch Manager at Tyreright Port Hedland from December 2015 to October 2016;
·A notice of intention to consider cancellation (NOICC) was issued on 13 April 2017;
·On 28 April 2017, the applicant responded in writing to the NOICC stating inter alia that the majority of his duties have not been consistent with his nominated occupation; that this was done under the direct order from the business owner; that he raised his concerns with the business owner that he is not working only in the occupation listed in his most recently approved nomination, namely as an ICT Customer Support Officer, and was told by the business owner that he knows what he could and could not do for the business; that he offered to fill in the position of a manager at the Port Hedland store until his employer could find a permanent replacement; that his employer threatened to have his visa cancelled and that he put up with this as he could not change his sponsor;
·It is further recorded in the primary decision that a new nomination has been lodged for the nominee for the same occupation with a different employer some 107 days after the nominee ceased employment at Iris Contractors Pty Ltd and that the decision on this nomination was still pending with the Department at the time of the delegate’s decision; that the nominee conceded that he worked as a Branch Manager at Tyreright Port Hedland from December 2015 to October 2016 as well as temporarily at other times when the appointed manager was absent.
·On 17 August 2017, the delegate proceeded to cancel the applicant’s visa.
The applicants applied to the Tribunal on 24 August 2017 for review of the visa cancellation and with the application submitted a copy of the primary decision record.
On 28 August 2017, the applicant submitted:
·A copy of a document headed ‘Kirsty 2013 till present and Compelling reasons to stay’ (previously provided to the Department);
·A copy of a document headed ‘Ethan’s Achievements in Australia’ (previously provided to the Department);
·A copy of a document headed ‘Cuan’s achievements in Australia’ (previously provided to the Department);
·A copy of a document titled Reasons to stay in Australia and not to return to Zimbabwe;
·A bundle of images of documents and Facebook posts related to the educational, social and sporting achievements of the applicant and his family and political situation in Zimbabwe;
·A copy of the work and character reference letter from Britt Dunn as evidence that the applicant’s wife worked as a cleaner at Esperance; and
·A copy of the work and character reference letter from Hayley Kirkup as evidence that the applicant’s wife worked as a cleaner at Esperance.
On 10 April 2018, the applicant submitted:
·A bundle of invoices related to the medical treatment of the applicant’s wife and new born twins;
·A copy of unpaid bills related to schooling of the applicant’s children; and
·A copy of a document titled ‘Updated Circumstances since application lodgement’ dated 10 April 2018 and signed by the applicant;
On 29 November 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 31 January 2019.
On 23 January 2019, the applicant submitted:
·A copy of a character reference letter for the applicant’s wife provided by Ms Justine Williams dated 12 January 2019 describing the difficulties of living in Zimbabwe;
·A copy of a character reference letter for the applicant’s wife, Ms Kirsty Louw, provided by her mother, Ms Jacqueline Erasmus, dated 3 September 2017, describing the difficulties of living in Zimbabwe;
·Copies of the school reports for the applicant’s children;
·A copy of a character reference letter for the applicant’s wife provided by Paul Gordon Brander describing the difficulties of living in Zimbabwe;
·A bundle of newspaper articles about the situation in Zimbabwe;
·A copy of a work and character reference letter provided by Mr Jamie Goodwin, the applicant’s current employer dated 10 January 2019; and
·A copy of a document titled ‘Final Situation Update before AAT hearing’ dated 10 April 2018 and signed by the applicant.
The applicant appeared via video conferencing before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Malcolm Heasman, the former Esperance Shire President.
The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The Tribunal informed the applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition imposed on his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(a)(i) that the visa holder must work only in the occupation that was listed in the most recently approved nomination.
The Tribunal further explained to the applicant that, if satisfied that a ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is 41 years of age and a national of South Africa. He is married and has four children, two of them from his wife’s former partners. His wife has full custody of her two underage sons. The applicant lived in Zimbabwe since birth. In 2004 he renounced Zimbabwean citizenship when he obtained a South African passport. He is not sure if he is entitled to reside permanently in Zimbabwe as a holder of a South African passport but stated that he can legally reside in South Africa.
In Zimbabwe, the applicant completed the equivalent of year 12 and worked as an operations manager for the period of three years and six months. He resided at his wife’s house which was sold to her brother-in-law prior to arriving in Australia. His stepmother lives in Darwin, his two stepbrothers and one stepsister live in Perth. He stated that he maintains contact with them but that the relationship is not very good at the present time.
His wife holds a United Kingdom (UK) passport and according to his belief, she is entitled to reside in the UK. In Zimbabwe, she has completed the equivalent of year 12 and worked for more than four years at the family business which was closed two to three years ago. She has no relatives in Australia. Her parents and brother live in Zimbabwe.
He first came to Australia in August 2008 as a dependent family member of his former partner’s family unit. His former partner was a Subclass 457 primary visa holder and was sponsored by an Australian travelling business.
He was granted a Subclass 457 visa on 30 October 2013 based on the sponsorship and nomination from Iris Contractors Pty Ltd. The sponsoring business was located in Perth. He was a full time employee with the annual salary of $65,000.
He arrived in Australia in November 2013 and soon after commenced his employment with the sponsor. His visa vas granted for the period of four years. I explained to the applicant that, but for the cancellation, his visa would have ceased on 30 October 2017. I further explained that, regardless of the outcome of this hearing, his Subclass 457 visa could not be reinstated even if the cancellation was to be set aside. The applicant confirmed that he understood the explanation.
He confirmed in his evidence that he received a Subclass 457 visa grant letter from the Department and that he read and understood the conditions imposed on the visa. He further confirmed that he provided to the Tribunal written statements headed ‘Kirsty 2013 till present’, ‘updated circumstances since application lodgement 10 April 2018’ and ‘final situation update before AAT hearing dated 23 January 2019’ and that everything stated in these documents is true and correct.
I noted that, according to the primary decision record provided by the applicant, on 4 April 2017, the officers of the Department checked the applicant’s Linkedn profile which revealed that he worked as a Branch Manager at Tyreright at Port Hedland from December 2015 to October 2016. It is also recorded in the primary decision that in his response to the NOICC the applicant did not dispute that he worked as a Branch Manager at Tyreright at Port Hedland during the stated period. The applicant confirmed this to be correct.
I noted that, according to the primary decision record, the applicant raised concerns with his employer that he was not working only in his nominated occupation, but that the employer responded that he knew what he could and could not do with the applicant. I further noted that, according to the primary decision record, the applicant stated that he offered to fill in the position of manager at the Port Hedland Store until the employer could find a permanent replacement. The applicant confirmed this to be correct.
He gave evidence that he ceased employment at the sponsoring business on 11 October 2016 as he had a disagreement with his employer. In November 2016, the family moved from Port Hedland to Esperance, as neither the applicant nor his wife was able to find employment at Port Hedland. His wife set up the cleaning business in Esperance and supported the family.
I noted that, according to the primary decision record, the applicant was nominated by a different business to work as an ICT Customer Support Officer. I enquired as to what happened with that nomination application. The applicant stated that the business who nominated him for the position was South East Chipping. This business had the sponsorship approved but the applicant was not sure what happened with the nomination application. He further stated that this business ceased trading in December 2017.
His visa was cancelled in August 2017 and he was only granted work rights in April 2018. Three weeks later he managed to find employment as a machine operator. His wife is currently not employed.
In July 2018 he commenced full time employment at Esperance Combine Tyres & Mechanical (ECTM) where he remains employed to date as manager. He stated that the current employer did not lodge sponsorship and nomination with the Department nominating him for the position within the business.
I explained to the applicant that, based on the evidence before me, including his oral evidence in which he conceded the breach of the visa condition, I am satisfied that the ground for cancellation in s.116(1)(b) is made out and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I indicated that I will take into consideration the evidence given at the hearing as well as submissions provided in support of the application. I asked the applicant if there was anything else that he wanted to raise with the Tribunal.
He stated that there is nothing else he wants to add. He informed the Tribunal that he applied for renewal of his South African passport in May last year and is still waiting to receive the new one. His son applied for a UK passport and is still waiting for the outcome of that application.
Evidence of Mr Heasman
In his evidence, the witness stated that he was shire president of Esperance from 2011 to 2015. He stated that he did not know the applicant and his family for a long period of time but he can attest to their good character. He stated that the applicant is working and supporting his family and that the consequences of returning to Zimbabwe would be horrendous for the family.
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
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?
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.
This condition, inter alia, requires that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as an ICT Customer Support Officer and the associated business nomination was approved by the Department on 15 October 2013.
Based on the evidence before me, including the oral evidence from the applicant, his written submissions and the investigation conducted by the Department as recorded in the primary decision record, I am satisfied that the applicant worked as a Branch Manager at Tyreright Port Hedland from December 2015 to October 2016.
Based on this finding, I am satisfied that the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of his visa. I am therefore satisfied that the ground for cancellation exists under s.116(1)(b).
As this ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Migration Regulations 1994 (the 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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Iris Contractors Pty Ltd as ICT Customer Support Officer.
The applicant ceased employment at the sponsoring business in October 2016. His Subclass 457 visa, but for the cancellation, would have ceased on 30 October 2017. He is currently not sponsored or nominated by any Australian business.
As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists. I give significant weight to this consideration.
The reason for and extent of the breach

The applicant’s visa was subject to condition 8107. Based on the applicant’s oral evidence given at the hearing I am satisfied that the applicant was aware of the condition imposed on his Subclass 457 visa.
The applicant conceded in his evidence that, after he was granted a Subclass 457 visa and nominated to work as an ICT Customer Support Officer, he worked as a Branch Manager at Tyreright at Port Hedland from December 2015 to October 2016.
I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.
Circumstances in which ground of cancellation arose
I find that the circumstances in which the ground for cancellation arose under s.116 (1)(b) (breach of condition 8107) were brought about by the applicant, and were not beyond his control.
I acknowledge that the applicant felt compelled to follow his employer’s directions. However, I also find that the applicant offered to his employer to fill in the position when the Port Hedland Store required a manager, until the employer could find a permanent replacement.
Past and present conduct of the visa holder towards the Department
There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that he has been co-operative with the Department.
Degree of hardship that may be caused
The applicant claims that the visa cancellation will cause significant hardship to him and his family because of the political and economic instability in Zimbabwe. He stated that they have nothing left in Zimbabwe and that the reason for coming to Australia was to provide his children with safety, health, security and education. He stated that he and his family never had intentions of moving back to Zimbabwe, that his stepmother, two stepbrothers and one stepsister live in Australia. He claims that leaving Australia will cause deep mental and emotional torment to him and his family as they are now settled in Australia. He claims that Zimbabwe is an unsafe country to live in, that school fees are not affordable, that there are no jobs and that medical services in Zimbabwe are substandard and too expensive. He further stated that his children achieved outstanding results at their schools in Australia.
I have taken into consideration the applicant’s evidence that in Zimbabwe he completed the equivalent of year 12 and worked as an operations manager for the period of three years and six months. I have also considered the applicant’s evidence that he holds South African passport and is entitled to reside in South Africa. I have considered the applicant’s evidence that his wife holds UK passport and is entitled to reside in UK.
I accept that the applicant and his family have established ties to the Australian community. I accept that the applicant and his family will suffer hardship if they are required to depart Australia. I further accept the applicant’s submissions that the standard of living, economy, security and political situation in Australia are better than in Zimbabwe. I have taken into consideration work and character reference letters provided in support of the review application.
Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.
I am satisfied that the applicant is not prevented by public interest criterion 4013 of Schedule 4 to the Regulations from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor, and has the approved business nomination in relation to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would
result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
Act which prevent the person from making a valid visa application without the Minister’s
Intervention
The applicant is currently on a Bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 of the Regulations prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
Whether there would be consequential cancellations under s.140
Whilst the applicant’s wife’s and children’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes this will not result in separation of the applicant from his wife and children.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
The Tribunal notes that cancelling a visa is legally distinct from removal and would not breach Australia’s non-refoulement obligations. The cancellation does not affect the applicant’s ability to make a valid application for a protection visa should he choose to do so.
The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
Other matters raised by the applicant
I accept that both the applicant and his son applied for new passports.
Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
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.
Antonio Dronjic
Member

[2019] AATA 899

6 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Breach

Natural Justice