Manito (Migration)

[2020] AATA 57

Manito (Migration) [2020] AATA 57 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Marjorie Manito
Mr Michael Concepcion
Ms Mia Mikhaela Manito

CASE NUMBER:  1909371

HOME AFFAIRS REFERENCE(S):          BCC2019/436752

MEMBER:Antonio Dronjic

DATE:6 January 2020

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 January 2020 at 9:31am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment more than 90 days – resigned due to mistreatment – ample time to find new sponsor – no jurisdiction with respect to other applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
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 10 April 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 first named applicant (the applicant) breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. 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 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

4. The decision record of 10 April 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 16 November 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain valid until 16 November 2020;

   ·The standard business sponsor who nominated the applicant to work as a massage therapist was Neon Supplies Australia Pty Ltd T/As Japanese Mountain Retreat (the sponsor);

   ·On 2 July 2018 the sponsoring business informed the Department that the applicant ceased her employment, effective 25 June 2018;

   ·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 21 March 2019;

   ·The applicant responded to the NOICC on 25, 26 and 27 March 2019; and

   ·On 10 April 2019, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 15 April 2019 for review of the visa cancellation and with her application submitted:

   ·A copy of the primary decision record;

   ·A copy of the NOICC; and

   ·A copy of the applicant’s positive skills assessment outcome for her nominated occupation of a massage therapist dated 27 August 2018.

6. On 20 November 2019, 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 23 December 2019.

7. The applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the conditions of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and daughter’s visas were automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of those other visas self-executing on the cancellation of her visa.

8. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant is 35 years of age and a married national of the Philippines. Her husband and daughter, who is seven years of age, are currently in Australia. Seven of her siblings and her parents live in the Philippines. Neither she nor her husband has blood relatives in Australia.

10. In the Philippines the applicant completed a bachelor of Elementary Education in 2005 and worked as massage therapist for two years. She then went to Singapore and Malaysia where she worked in her occupation for approximately two years.

11. The applicant first came to Australia in August 2009 as a holder of a Subclass 457 visa granted on the basis of the sponsorship and nomination made by an Australian business, Pure Energy Day Spa.  Her visa was granted on 14 August 2009 for the period of four years. However, the applicant’s Subclass 457 visa was cancelled by the Department in November 2011. The applicant and her family departed Australia. From 2012 to 2016, the applicant lived and worked in her occupation in New Zealand.

12. Her second Subclass 457 visa was granted on 16 November 2016 based on the sponsorship and nomination made by an Australian business, Neon Supplies Australia Pty Ltd T/As Japanese Mountain Retreat. The applicant, her husband and daughter arrived back in Australia on 14 December 2016 and the applicant commenced her full time employment at the sponsoring business on 15 December 2016.

13. The applicant confirmed that she received a copy of the visa grant letter from the Department which contained an explanation of the conditions imposed on her visa. She stated that she read and understood the visa grant letter.

14. The applicant gave evidence that she ceased working at the sponsoring business on 25 June 2018 as both she and her husband were mistreated by the employer. She stated that she attempted to find a new employer but was not successful. With her family she went to Port Douglas, Townsville, Alice Springs, Hobart and Perth. She was nominated for a Subclass 482 visa by an Australian business from Perth but this nomination application was refused by the Department in December 2018. She stated that she is still looking for an Australian business willing to sponsor and nominate her for a position as a massage therapist. She further stated that she has a job offer from New Zealand.

15. She gave evidence that on 15 November 2019 she commenced employment at a business located in Frankston (Endota Spa). The business indicated that it is willing to help her. However, at the time of this hearing the business did not apply to the Department for approval of either sponsorship or nomination applications.

16. She gave evidence that her husband has been employed as a housekeeper at Mornington Peninsula Hotel since June 2019.

17. She stated that, as of the day of this hearing, she is not employed in her occupation by an Australian business that is an approved sponsor and that successfully nominated her to work at that business. She conceded that she breached the 8107 condition, as the period during which she ceased employment exceeded 90 consecutive days.

18. She stated that she intends to apply for a skilled visa (Subclass 190) as she now has a successful skills assessment. She gave evidence that she was unable to achieve the required score in the English language test and because of that she did not lodge a visa application with the Department.

19. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that she breached condition 8107 that was imposed on her Subclass 457 visa, as the period during which the applicant ceased employment exceeded 90 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

20. The Tribunal invited the applicant to bring to its attention any matter she considers relevant to the Tribunal’s consideration as to whether the visa should be cancelled.

21. The applicant stated that she loves Melbourne, that her daughter and her family will have a better future in Australia and that she loves her job.

22. 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

23. 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?

24. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 is attached to the applicant’s visa. The condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.

25. As noted above, condition 8107 was attached to the applicant’s visa, which was granted on 16 November 2016, and which, but for its cancellation, was valid to 16 November 2020.

26. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 25 June 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

27. 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 power to cancel the visa should be exercised.

    Consideration of discretion

28. 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’.

29. 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) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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].

30. 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

31. 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 Neon Supplies Australia Pty Ltd as a massage therapist on a temporary basis. The applicant resigned from her job on 25 June 2018 as she was mistreated by her employer. She decided to remain in Australia and try to find a new employer. The Tribunal accepts that she applied for the position of a massage therapist at various businesses located across Australia but was not successful.

32. Based on the evidence before it, the Tribunal is satisfied that, as of the day of its decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

33. 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 as the applicant ceased working for her sponsor in June 2018. The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

34. The ground for cancellation arose when the applicant ceased working for her sponsoring employer on 25 June 2018. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa, which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.

35. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than 18 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

36. The applicant ceased her employment at the sponsoring business on 25 June 2018. The Department did not proceed with the visa cancellation until 10 April 2019. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

37. The Tribunal accepts that the applicant resigned from her employment due to working conditions and mistreatment by her employer. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the Department

38. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused to the applicant and her family

39. The applicant claims that the visa cancellation would cause hardship to herself and her family. The applicant stated that she loves Melbourne, that her daughter and her family will have a better future in Australia and that she loves her job.

40. The Tribunal accepts that the applicant has been living in Australia since December 2016 and that her daughter recently completed grade one of primary school. It accepts that the applicant would like to stay in Australia with her husband and child. The Tribunal further accepts that employment opportunities in the Philippines are generally more limited than in Australia, and that average incomes in the Philippines are lower than in Australia.  The Tribunal further accepts that the applicant and her family may suffer some hardship if required to return to the Philippines.

41. The Tribunal has taken into consideration the applicant’s evidence that the majority of her relatives live in the Philippines and that neither the applicant nor her husband has any relatives in Australia. The Tribunal considered the applicant’s evidence that she completed a Bachelor of Elementary Education in the Philippines and worked as a massage therapist in the Philippines, Singapore, Malaysia, New Zealand and Australia.

42. The Tribunal is satisfied that the applicant would be able to re-establish herself in the Philippines, given her family composition, education and work experience obtained in Australia and overseas.

43. Balanced against any potential hardship to the applicant and her 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.

    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

44. 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 her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

45. 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.

46. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as she breached the 8107 condition imposed on her visa. Relevantly, public interest criterion (PIC) 4013(2)(b) of Schedule 4 to the Regulations prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once she 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 would be consequential cancellations under s.140

1. Whilst the applicant’s husband’s and daughter’s visa were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and child.

2. However the applicant’s husband and daughter were only granted a Subclass 457 visa on the basis of being the applicant’s family members and it is not an unintended consequence of the legislation that if the applicant's visa is cancelled then her family members’ visas are consequentially also cancelled. In this respect the consequential cancellations will not result in the separation of the applicant from her husband and child, which keeps the immigration status of all family members aligned. The Tribunal therefore accords this consideration little weight.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

3. 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).

4. The applicant did not claim and there is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

5. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s daughter to remain with her family.

6. 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.

7. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

   The impact on any victims of family violence

8. There is no evidence before the Tribunal regarding this matter.

   Other relevant matters

9. Having no evidence to indicate otherwise, the Tribunal accepts the applicant’s claims that she is a person of good character and has obtained a positive skills assessment outcome for the occupation of a massage therapist.

10. Having had 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

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

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

    Antonio Dronjic
    Member