Morgan (Migration)

[2018] AATA 356

Morgan (Migration) [2018] AATA 356 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cecilia Patricia Meriel Morgan

CASE NUMBER:  1621300

DIBP REFERENCE(S):  BCC2016/3489850

MEMBER:Antonio Dronjic

DATE:23 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 23 January 2018 at 3:09pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement not to cease employment for more than 90 days – Applicant ceased employment for more than 90 days – Grounds for cancellation exist – Discretion to cancel – Factors beyond applicant’s control - Medical problems – Cessation of work rights – Applicant consistently sought employment – Emotional and economic hardship not significant

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8107(3)(b)

CASES
Pradhan v MIMA (1999) 94 FCR 91

Re Drake (No. 2) (1978-1980) 2 ALD 634

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 Affairs2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 December 2016 made by a delegate of the Minister for Immigration 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 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. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8. Where the terms of a visa condition have been amended during the life of the visa, the version of the condition that must be considered is the version that was applicable at the time of visa grant, unless there is a contrary intention expressed in amending legislation.[1]

   Background to the cancellation of the applicant’s visa

   [1] Pradhan v MIMA (1999) 94 FCR 91 at [19]. The Court noted that the scheme of the Act and Regulations did not provide for variation of conditions during the term of the visa.

4. The decision record of 2 December 2016 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 19 September 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 19 September 2019;

   ·The standard business sponsor who nominated the applicant to work as a Program or Project Administrator was Wood & Grieve Engineers Pty Ltd;

   ·On 30 June 2016 the applicant ceased her employment with the sponsoring business;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued on 17 November 2016;

   ·On 24 November 2016, the applicant responded to NOICC; and

   ·On 2 December 2016, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the tribunal on 13 December 2016 for review of the visa cancellation and with her application submitted copy of the primary decision record.

6. On 29 November 2017, 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 16 January 2018.

7. On 9 January 2018, the applicant’s representative submitted:

   ·Submissions outlining the applicant’s immigration history in Australia; conceding that the grounds for visa cancellations was made up as the period during which the applicant ceased employment exceed 90 consecutive days; inviting the tribunal to exercise its discretion and reinstate the applicant’s visa for the following reasons:

   The applicant met partner Brad Fetter (‘Brad’) in June 2014 and has been in a committed de facto relationship with Brad since February 2015; Brad will suffer significant hardship if the applicant is required to leave Australia; the applicant herself has now lived in Australia since December 2011, establishing a life here with employment, a home with Brad and making many friends; both her and Brad have concerns about finding employment and working in the UK, the applicant is concerned about her ability to obtain visas for other countries in the future should she have to declare the 457 visa cancellation on visa application forms;

   The applicant commenced new employment with Taxibox Group Pty Ltd as an Assistant Manager (Customer Service) in March 2017and is now a productive member of the business. Given current processing times for 457 visas, if the applicant has to leave Australia, the business will suffer significant hardship;

   Her employment at Wood & Grieve Engineers Pty Ltd was terminated in June 2016 after having laboured in a “toxic environment” for “many months”. This was followed by illnesses in September and November 2016 which further delayed action on her 457 visa;

   With the exception of the breach of Condition 8107 which led to the cancellation of her 457 visa, the applicant has previously complied with her visa conditions;

   ·Employment contract;

   ·Position description;

   ·Organisation chart;

   ·Photos of Taxibox Group Pty Ltd workplace;

   ·PAYG summary 2017;

   ·SBS approval notice for Taxibox Group Pty Ltd dated 27 November 20017;

   ·Business Nomination acknowledgment as evidence that Taxibox Group Pty Ltd lodged nomination application with the department on 12 September 2017;

   ·Brad’s passport;

   ·Partner relationship statement;

   ·Statements from family and friends;

   ·Evidence of joint residence;

   ·Joint travel itineraries;

   ·Invitations to events;

   ·Photos of travel and events;

   ·Reference letters from Pinpoint Corporate Services and Wood & Grieve Engineers;

   ·Business Training Diploma;

   ·Letters from doctors; and

   ·Bridging visa E letter granting work rights.

8. The applicant appeared before the Tribunal on 16 January 2018 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who attended the Tribunal hearing.

9. 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 condition of her visa. Specifically, the 8107 condition to which his 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 exceeded 90 consecutive days.

10. The tribunal further explained to the applicant that, if satisfied that the 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.

11. The applicant is 30 years of age national of UK. She is and has been living in a de facto relationship with an Australian citizen, Mr Brad Fetter since February 22015 and has no children. Her mother lives in UK and she has several relatives (two aunties, uncle and two cousins) living in Northern Territory, Western Australia and Melbourne. She maintains regular telephone contact with her relatives. She does not have any property in UK. She has been employed in UK for almost 10 years. The highest level of education completed in UK was Diploma of Business. Her partner is employed at a family business.

12. She commenced employment at Wood & Grieve Engineers Pty Ltd in September 2013. She remained employed at the same sponsoring business until 30 June 2016. She gave evidence that she received the visa grant letter from the department that contained explanation of conditions imposed on her subclass 457 visa. She conceded that the period during which she ceased employment exceed 90 consecutive days as she only commenced employment with her current sponsoring employer in March 2017.

13. She reiterated that in September and November 2016 she had medical problems that prevented her from seeking employment and referred the tribunal to the medical certificates provided by her representative. She stated that the department only removed ‘no work’ condition that was imposed on her bridging visa “E” on 16 March 2017. She stated that she previously applied for removal of this condition on two occasions but was not successful. She gave evidence that, despite being offered employment at Taxibox Group Pty Ltd in December 2016, she was unable to commence employment due to no work condition imposed on her visa.

14. She commenced a full time employment at Taxibox Group Pty Ltd on 17 March 2017. She is employed as a Customer Services Manager and her employer received sponsorship approval on 27 November 2017. The decision on nomination application is still pending with the department. On 22 December 2017, her representative responded to the department’s request for further information. She have evidence that her current employer had annual turnover in excess of $1,000,000.00, that her position is not is based in a front-line retail setting and does not predominantly involves direct client transactional interaction. Her proposed salary is $65,000 not including superannuation.

15. I explained to the applicant that, based on the evidence before me, I was satisfied that she breached the condition 8107 that was imposed on her subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances which may include matters of government policy, as set out in the departmental guidelines. I explained these guidelines to the applicant.

16. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submission provided in support of the application. I asked the applicant if there is anything else that she wants to raise with the tribunal. She reiterated statements contained in the written submissions of 9 January 2018.

17. I granted the applicant the additional time until 19 January 2018 to provide Statutory Declaration from her current employer.

18. On 22 January 2018, the applicant’s representative submitted Statutory Declaration sworn by Mr Benjamin Cohn, the Managing Director of the sponsoring business, in which he declared that the business will be adversely affected if the applicant is required to leave Australia and wait for the outcome of nomination application of shore. If was declared that the Department’s processing time for nomination applications is currently 10 months.

19. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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?

21. 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 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

22. In this instance condition 8107 was attached to the applicant's visa, which was granted on 19 September 2015, and which, but for its cancellation, was to remain valid to 19 September 2019.

23. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that the applicant ceased employment with Wood & Grieve Engineers Pty Ltd on 30 June 2016. The tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the tribunal finds that the review applicant did not comply with condition 8107(3)(b).

24. 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

25. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

26. The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[2] 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.[3]

    [2]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [3]     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 Affairs2006] 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]

27. 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

28. The purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

29. The tribunal finds that the purpose of the applicant’s stay in Australia was to work on a temporary basis. The applicant was unfortunate to lose her job on 30 June 2016. The applicant decided to remain in Australia and try to find a new employer.

30. She was unable to do so before her visa was cancelled by the department on 2 December 2016. I accept that the applicant was unable to commence employment due to medical problems and loss of work rights. She managed to find the new employer at Taxibox Group Pty Ltd. Despite being offer employment as early as in December 2016, the applicant did not commence employment until ‘no work’ condition was removed from her bridging visa “E” on 17 March 2017.

31. Based on the DIBP notification of approval of Standard Business Sponsorship (SBS), I am satisfied that the applicant’s current employer has been approved as a SBS sponsor on 27 November 2017. Based on the DIBP acknowledgment letter of 12 September 2017, I am satisfied that the new prospective employer, Taxibox Group Pty Ltd, nominated the applicant for a position of a Customer Services Manager and that the decision on this application is pending.

32. I have taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 19 September 2019. This is the consideration that favours reinstatement of the applicant’s visa.

33. The Tribunal finds that the purpose for applicant’s stay in Australia is not lost as the applicant has found the new employer that nominated the applicant for a position within the business. This is the consideration that favours the reinstatement of the applicant’s visa.

    The reason for and extent of the breach

34. The applicant’s visa was subject to 8107 condition.  I am satisfied on the evidence before me that the applicant was aware of the condition imposed on her 457 visa.

35. The ground for cancellation arose when the applicant ceased working with her sponsoring employer on 30 June 2016. Based on the evidence before me, I find that the department did not proceed with the visa cancellation until 2 December 2016, despite the fact that the applicant ceased her employment at Wood & Grieve Engineers Pty Ltd on 30 June 2016.

36. I acknowledge that the It has been more than nine months since the applicant ceased her employment with the company that was an approved standard business sponsor and that successfully nominated the applicant. However, based on the evidence before me, I accept that the applicant was unable to commence employment earlier because of factors beyond her control (medical issues and inability to work due to conditions imposed on her bridging visa).

37. For this reason I am satisfied that in this instance, there was no significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

38. Whilst I accept that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

39. I accept that the applicant’s ability to find new employment (earlier that she did) was affected by medical issues and inability to commence work due to conditions impose on her bridging visa. According to her evidence, she applied to change condition on her bridging visa E and obtain work rights on two occasions before March 2017, but was not successful.

    Past and present conduct of the visa holder towards the department

40. I accept that the applicant has not previously breached visa conditions and has been co-operative with the Department. I also accept that the applicant did not breach conditions of her bridging visa ‘E’ as she did not work from the time her subclass 457 visa was cancelled until she was granted bridging visa ‘E” with work rights in March 2017. This is the consideration that favours the reinstatement of the applicant’s visa.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

1. The applicant claims that the visa cancellation would cause her, her partner and her current employer significant hardship. She presented evidence of living in Australia since December 2011 and of her de facto relationship with an Australian citizen since February 2015. I accept her evidence that she established considerable personal and employment ties with Australian community.

2. I have also taken into consideration the applicant’s evidence that she has a number of relatives in Australia and only mother living in UK. I considered her educational achievements and work history from UK and Australia.

3. I accept that leaving Australia may involve some hardship to the applicant but I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish herself in UK, given her qualifications and work experience.

4. Based on the Statutory Declaration provided by Mr Benjamin Cohn, the Managing Director of the sponsoring business, I accept that the business may suffer minor hardship if the applicant is required to depart Australia and wait for the outcome of nomination application.

5. Whilst the Tribunal accepts that the applicant’s current employer would be inconvenienced to a certain extent if she had to depart Australia, the Tribunal notes that the cost to the business of recruiting, training and replacing a staff member was an ordinary aspect of the operation of almost all business which occurred on an ongoing basis.

6. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant was granted a temporary visa which creates 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 sponsors for up to four years.

7. I note that a subclass 457 visa applicants must meet the requirements in PIC 4013, which do include three year exclusion periods in some instances. However I do not consider these exclusion periods to be applicable in this case, having regard to the ground of cancellation.  

8. In any event, the applicant is not prevented from re-applying for 457 visa if and when the nomination application is approved by the department.

9. This consideration does not favours the reinstatement of the applicant’s visa

   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

10. 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 will have 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.

11. The tribunal is mindful that Section 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 section 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.

    Whether there would be consequential cancellations under s.140

12. There is no consequential visa cancellation.

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

13. 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).  

14. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. 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

15. There is no evidence before the tribunal regarding this matter.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Antonio Dronjic
    Member