Nadav (Migration)

[2020] AATA 3685

Nadav (Migration) [2020] AATA 3685 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dror Ihiel Nadav
Mrs Pnina Nadav
Ms Oriyan Nadav
Ms Daniel Nadav
Master Yarin Nadav
Master Almog Nadav

CASE NUMBER:  1929198

HOME AFFAIRS REFERENCE(S):          BCC2019/3163561

MEMBER:Bridget Cullen

DATE:10 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 10 July 2020 at 6:45pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – no written notice of termination – unpaid leave for an extended period of time – consideration of discretion – purpose of visa not fulfilled – unable to secure a new nomination – degree of hardship – disruption to children’s education – compulsory military service – best interest of children – decision under review set aside

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

1. This is an application for review of a decision dated 4 October 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 applicant had ceased employment with the approved sponsor for a period exceeding 60 consecutive days. The delegate found that it was a condition of the visa that if the visa holder ceased employment, the period during which the visa holder ceased employment with the sponsor must not exceed 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. 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.

4. The applicant, Mr Dror Ihiel Nadav, and his wife, Mrs Pnina Nadav, appeared before the Tribunal on 5 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Eden Fridman, Managing Director of Expo Direct Pty Ltd (“Expo”), a prospective employer of Mr Nadav.

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

6. The applicants were represented in relation to the review by their registered migration agent, Mr Dave Hadley (MARN 1462320) of Coral Sea Migration. Mr Hadley, who is also a solicitor, attended the Tribunal hearing.

7. 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

8. 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?

9. A visa may be cancelled under s.116 (1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant's visa. This condition requires that if the visa holder ceases employment, this can only be for a maximum of 60 consecutive days before the visa holder is then in breach of the visa condition.

10. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is THE WARWICK PALEY FAMILY TRUST (‘the sponsor’). The nomination was approved on 8 September 2016, and would be (but for cancellation) valid until 8 September 2020.

11. The delegate’s decision record, provided by the applicants to the Tribunal in conjunction with the review, reflects that the sponsor advised the Department that the applicant ceased employment with them effective 6 November 2018. As a consequence, when the Department cancelled the visa on 4 October 2019, it had been well in excess of 90 days since the applicant last worked for the sponsor.

12. The applicant does not agree that a ground for cancellation exists.  He responded, through his representative, to the Department’s Notice of Intention to Consider Cancellation “NOICC”, issued on 22 August 2019. In short compass, the applicant submits that he has never been formally terminated, and says that his employer told him that he was being placed on unpaid leave as there had been a downturn in work.

13. The applicant’s response to the NOICC, dated 5 September 2019, has been outlined by the delegate in the decision record in some detail. Relevantly, the applicant said that:

    ·On about 6 November 2018, he was advised that he was required to take unpaid leave for an extended period of time as the business was experiencing issues unrelated to his employment or work performance.

    ·He has been waiting for notice that he is to resume his duties. To date, he has not received any written notice of termination of his employment, as required by his employment contract or under Fair Work provisions. He has not been made redundant from his position. He has not engaged in employment for any other person or business and he remains ready, willing and able to return to his position with the Sponsor.

    ·He was surprised and concerned to receive the NOICC, as he was not aware that his Sponsor considered that his employment had been terminated and that he did not have an employment position to return to.

    ·He has been exploring alternative employment opportunities but has not proceeded with any as he hoped to return to his role with the Sponsor when possible.

    ·He believed that his employer was able to put him on leave without pay for a period of up to 12 months, and further believed that this was permitted by the visa conditions applicable to him.

14. The Tribunal has also been provided with a letter sent to the Sponsor on the applicant’s behalf, by his representative. In sending the letter, which is dated 4 September 2019 (the day prior to the applicant’s NOICC response), and which has been marked “Without Prejudice Save as to Costs”, the applicant has waived privilege and confidentiality over the contents.

15. The contents of the letter seek clarification from the Sponsor about the applicant’s employment status, as well as reimbursement for the applicant’s costs in relocating his family from Israel to Australia, and what are termed “repatriation costs” in accordance with 457 sponsorship obligations. The applicant’s evidence before the Tribunal was that there was no response to the letter. The Tribunal accepts that there was no response to the without prejudice letter.

16. The delegate’s decision record also reflects that the applicant did take some steps to try and locate alternative employment - he lodged a nomination on 18 March 2019 which was refused on 21 March 2019. His prospective employer, Mr Eden Fridman, Managing Director of Expo Direct Pty Ltd (“Expo”), gave evidence at the hearing that he was keen to hire the applicant because he was a very skilled carpenter.  However, he had not yet (and still has not) lodged a nomination seeking to sponsor the applicant. Because of the cost associated with lodging a nomination, Mr Fridman wanted the Tribunal to assure him that the nomination would be approved. The Tribunal explained that it cannot provide any assurance, as this is not before the Tribunal, and would be a matter for the Department.

17. Following the hearing, the Tribunal provided additional time for the applicant to submit information about the nomination. On 16 April 2020, the applicant provided submissions to the Tribunal explaining that:

    At the Hearing it was orally submitted by Mr Eden Fridman, Managing Director of Expo Direct Pty Ltd (“Expo”) that a Nomination was to have been completed and lodged by them, as they had made an offer of employment to Mr Nadav.  

    Evidence of the nomination and its current status was to have been submitted to the Tribunal.

    The Tribunal may be aware that the Exhibition and Convention industry was among the first to have been impacted and shut-down as a result of the current Covid19 pandemic. 

    As a result of this Expo sent a letter to all its staff and contractors on 16 March 2020 indicating that it was no longer able to carry on business and effectively halting the employment of all staff until the Covid19 restrictions have been rescinded. A copy of this letter is attached.

    In conjunction with this the Applicants were advised that Expo was not able to lodge a nomination in the circumstances.

18. As such, the applicant remains without an approved nomination.

19. Regardless of whether the applicant was advised of his termination in accordance with the provisions of the Fair Work Act 2009 (Cth), it is clear that the applicant was not paid by Sponsor following 6 November 2018. The applicant concedes that he was not paid by the Sponsor and that he did not attend work with his Sponsor after this point in time.

20. The applicant is unhappy with the manner in which he has been treated by his Sponsor, and explains that felt powerless, and in a weak bargaining position due to his visa situation. He was forced to live off of his financial reserves, which was difficult considering that he supports a wife and four children.

21. While the Tribunal appreciates the power dynamic that exists between a sponsor and nominee visa holder, the Tribunal’s role is not to determine whether the termination was “unfair”. Rather, the Tribunal must decide whether the applicant’s employment came to an end, and if so when it occurred.

22. The Tribunal does not accept that the applicant was, as he asserts, on a period of unpaid leave. The Tribunal also considers that, if the applicant had genuinely been placed on unpaid leave, the Sponsor would not have contacted the Department to advise that he had been terminated.

23. The Tribunal also thinks it likely, given the applicant’s efforts to obtain a new nomination through lodgment of the 18 March 2019 application (which was before the date of the NOICC) that the applicant understood he would not be returning to employment with his sponsor, even if he had not been advised this was the case in writing. Although the applicant told the Tribunal that he began to look for a new sponsor because his employer was “moody” and he was worried about stability, the Tribunal considers it more plausible that he was aware he was not returning to work for his existing Sponsor.

24. Accordingly, the Tribunal finds that the applicant ceased employment with his Sponsor on 6 November 2018. As the applicant ceased employment for a period exceeding 90 consecutive days, he no longer meets the requirement of subclause 8107(3)(b).

25. Therefore, he has not complied with a condition of his visa. 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 visa should be cancelled.

    Consideration of discretion

26. 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’.

27. The factors for consideration generally are:

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    ·the extent of compliance with visa conditions;

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    ·past and present behaviour of the visa holder towards the department;

    ·whether there would be consequential cancellations under s.140;

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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;

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation;

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia; and

    ·any other relevant matters.

28. The purpose of the 457 visa scheme was (as it has been discontinued) for an applicant to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation. Since ceasing employment with his approved Sponsor on 6 November 2018, the applicant has not been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa.  The Tribunal considers that this weighs strongly in favour of cancelling the visa.

29. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Carpenter for the Warwick Paley Family Trust, and that purpose ended on 6 November 2018 when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor. It has now been over 1 years and 8 months since the applicant ceased working for his approved Sponsor and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.

30. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved Sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. The Tribunal notes the applicant's efforts to secure another nomination, but the applicant has not been successful in these efforts. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa, as the applicant is not fulfilling the purpose of his holding the visa.

31. The Tribunal does not have the applicant’s full visa history before it, and is not aware of, save for non-compliance with condition 8107(3)(b), any other instances of non-compliance by the applicant with visa conditions.

32. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The applicant has a wife, and four children, who are secondary applicants on his 457 visa, and the decision will impact them.

33. Both the applicant and his wife have told the Tribunal that when they moved their entire family to Australia in 2016, they sold their family home, their furniture and assets, and relocated their children to new schools. They say that they have nothing to return to in Israel, if they are required to leave Australia.

34. The applicant and his wife are under significant stress, as they do not want to uproot their family. Their eldest child, Oriyan, was 19 at the time of hearing. She has graduated from Benowa High School and is working in an accounting firm. If she returned to Israel before she turns 24, she would have to complete, as an unmarried woman, two years of national service in the Israeli Army. She already had to repeat her Year 10 education when moving to Australia. She wants to be able to study further.

35. The second eldest daughter, Daniel, was turning 18 at the time of hearing, and is completing her schooling at Benowa High School. She is one of the top students in her Certificate III Fashion Design course at TAFE. She, too, would be required to complete national service if she returned to Israel. She would be at risk of not being able to complete her schooling if required to leave Australia.

36. The third eldest child, Yarin, was almost 14 at the time of hearing. He is in Grade 8 at Benowa High School, and plays basketball. The youngest, Almog, knew no English when the family relocated and is now, according to Mrs Nadav, “like an Australian”.

37. The Tribunal accepts that relocating a family with four children back to Israel, will cause significant hardship to the children, all of whom have spent their adolescent years in Australia. The Tribunal considers that it would be extremely disruptive to Daniel, in particular, who is in her final year of schooling.

38. The Tribunal accepts that it would create significant psychological distress to both Oriyan and Daniel, to have to confront two years of compulsory military service in a country that they have not lived in for nearly four years, at a critical time in their development into young women. They would not be undertaking service in a cohort of their friends, as Mrs Nadav explained is the case when Israeli children finish school and enter service. Neither Oriyan nor Daniel has a support network of Israeli friends. The Tribunal finds that their best interests are to be allowed to continue their education without the looming threat of compulsory military service.

39. The Tribunal is mindful of its obligations to consider the best interests of children as a primary consideration. In these particular circumstances, considering the number of children, the ages of the children, the disruption to Daniel’s graduation from high school, and the looming obligation to Oriyan and Daniel to complete two years of compulsory military service on return to Israel, the Tribunal consider that these factors weigh in favour of not cancelling the visa. 

40. Balancing the competing considerations before it, the Tribunal considers that the discretionary factors, particularly the best interests of four children, tip the discretionary factors in favour of not cancelling the visa.

41. In making a decision not to cancel, the Tribunal notes that the visa will expire on 8 September 2020, which is less than two months from now.

42. Given the looming 8 September 2020 expiry date, the applicants may well have to confront the reality that it may still be necessary for them to depart Australia, if they are unable to meet the criteria for a further visa. However, the Tribunal considers that for the sake of their children’s best interests, that they should be given the opportunity to consider their options without a cancellation on their visa history.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should not  be cancelled.

   DECISION

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

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

   Bridget Cullen
   Member