Morato (Migration)

[2021] AATA 2103

Morato (Migration) [2021] AATA 2103 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jayward Vic Carlos Morato

CASE NUMBER:  2014625

HOME AFFAIRS REFERENCE(S):          BCC2017/3520460

MEMBER:Vanessa Plain

DATE:26 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2021 at 2:59pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – new sponsor after one year not applying for nomination – impact of the COVID19 pandemic – financial hardship – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 September 2020 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) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 60 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. The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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.

   Particulars of the ground for cancellation

8. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(b) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

   “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):

   […]

   (b)if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days;

9. The Delegate’s decision record of 21 September 2020 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is HAWTHORN BODY WORKS PRESTIGE COLLISION REPAIRS PTY LTD (the sponsor), whose nomination was approved on 15 January 2018. The sponsor has advised the Department that the visa holder ceased employment with them effective 01 April 2020. This appears to indicate the visa holder has not complied with condition 8107(3)(b) because the period during which the visa holder has ceased employment has exceeded 60 consecutive days. Based upon this information, there appear to be grounds for cancelling the visa holder’s visa under s 116(1)(b) of the Act because it appears the visa holder has not complied with condition 8107.”

10. A Notice of Intention to Consider Cancellation dated 18 August 2020 (NOICC) was sent to the applicant at their nominated address.  No response was received by the Department from the applicant.

11. On 19 May 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 26 May 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case.  The applicant consented to attend the hearing and expressly waived their right to receive at least 14 days notice of the hearing.

12. In advance of the hearing, the applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Conditional Employment Contract dated 20 May 2021

    (c)Written submissions of the migration agent

    (d)Letter from proposed employer confirming approved sponsor status dated 21 May 2021

    (e)Notification of approval as a standard business

13. 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 their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their 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 60 consecutive days.

14. 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.

15. As at the hearing, the applicant stated in his oral evidence that his employer, Hawthorn Body Works Prestige Collision Repairs Pty Ltd, ‘let him go’ on or about 1 April 2020 due to the Covid pandemic. The applicant stated that his employer told him that ‘the shop isn’t working due to Covid.’  The applicant stated that he tried to find work thereafter, but was unable to find work.

16. The applicant further stated that he received the NOICC, but that someone had meddled with his email so that he was not able to read the NOICC.

17. Based on the applicant’s evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 1 April 2020.  The Tribunal further finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

18. For these reasons, the Tribunal finds 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

19. 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’.

20. 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

21. 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.

    Purpose of applicant’s travel to and stay in Australia

22. 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 Hawthorn Body Works Prestige Collision Repairs Pty Ltd as a panel beater on a temporary basis.

23. The applicant was unlucky to lose his employment in April 2020 due to the Covid-19 pandemic.  They decided to remain in Australia and try to find a new employer. They obtained a conditional contract of employment with Melbourne Collision Repair Centre dated 20 May 2021.  Their prospective employer has not yet nominated the applicant for a position in the business.  The applicant stated to the Tribunal that he did not know why the employer has not submitted the nomination to the Department.  The submission by the migration agent suggested that this will be attended to if the applicant is successful in this application before the Tribunal and that the reason the prospective employer has not yet nominated the applicant is due to the expense of the nomination process, being in excess of $5,000.00.  The Tribunal notes there is no direct evidence from the prospective employer as to why the nomination has not been lodged.  The prospective employment contract is conditional the applicant having full time working rights in Australia.

24. The Tribunal finds that, as of the day of the Tribunal’s hearing, 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.

25. 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 their sponsor in April 2020 and has not yet taken up employment with their proposed sponsor.   

26. The Tribunal affords this consideration significant weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

27. The non compliance with a visa condition arose when the applicant ceased working with their sponsoring employer in April 2020.  The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of their visa, which stated if the employment ceases it ‘must not exceed 60 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.

28. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. Although the Tribunal acknowledges the difficulties the applicant faced finding employment due to COVID-19, the Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 12 months since the original cessation of employment represents a significant breach of condition 8107.

29. The applicant informed the Tribunal that they have however, complied with all other visa conditions. The Tribunal has no reason not to accept that evidence.

30. The Tribunal gives this consideration some weight in favour of cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

31. The applicant ceased their employment at the sponsoring business in April 2020.  The Department did not proceed with the visa cancellation until 21 September 2020. 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.

32. The Tribunal notes that in the applicant’s evidence they stated that they started looking for work with new employers after leaving the old employer in April 2020, but that it was difficult to find work due to Covid. 

33. However, whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant and clearly arose due to the reduced operational requirements of the business due to the Covid-19 pandemic, and are to that extent beyond their control, nevertheless it is in the context of a temporary visa for a specific purpose ceased and as at the time of this decision, has not been rectified.

34. The Tribunal gives this consideration some weight in favour of cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

35. The Tribunal acknowledged the migration agent’s written submissions as to the hardship and difficulty the applicant will suffer if his visa remains cancelled.  The Tribunal asked the applicant whether he will suffer any hardship.  The applicant stated to the Tribunal that he will suffer hardship because his family are dependent upon him, in a financial sense. The applicant stated that he lives with his wife in Australia, but his children are not living in Australia.  He is unsure whether his wife’s visa is dependent upon his visa. 

36. The Tribunal has taken into consideration the applicant’s evidence and the migration agents submissions addressing the hardship the applicant faces.  It particularly acknowledges that t is presently difficult to leave the country due to Covid.

37. However, considering their family composition and work experience gained in Australia, the Tribunal is satisfied that the applicant and his wife will be able to re-establish themselves in their home country. 

38. Balanced against any potential hardship to the applicant and their 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.

39. The Tribunal acknowledges that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

40. The applicant did not respond to the NOICC, but the Tribunal has no reason to believe that the applicant read the NOICC in view of his explanation set out above. 

41. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

42. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

43. The applicant informed the Tribunal that his children do not live in Australia and he is unsure whether his wife’s visa is dependent up his visa and as such would be consequentially cancelled under s140 of the Act.  

44. As there is no evidence before the Tribunal as to any consequential cancellations, the Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

45. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

46. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) 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 The applicant’s proposed employer, Melbourne Collision Repair Centre is an employer who is approved as a standard business sponsor, but has yet to submit an approved business nomination form in relation to the applicant.

47. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

48. 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 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.

49. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  However, these are mandatory and intended consequences of the legislation which the Tribunal does not consider to be manifestly unfair in the circumstances.

50. The Tribunal therefore gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

51. 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).

52. The applicant informed the Tribunal that he does not have any children in Australia.  Therefore, the Tribunal is satisfied that Australia would not be in breach of its international obligations pursuant to any of these international agreements, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations.

53. The Tribunal does not give any weight for or against cancelling the visa for this consideration.

    The impact of any victims of family violence

54. There is no evidence before the Tribunal regarding this issue.

    Any other relevant matters

55. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

1. The Tribunal acknowledges that the applicant may experience difficulties in returning to the Philippines due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

2. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.There are no other relevant matters before the Tribunal. 

3. Although the matters set out above do not reveal any bad faith on the part of the applicant, 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.

4. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

   DECISION

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

   Vanessa Plain
   Member

   
   
   

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].