Ocampo (Migration)

[2018] AATA 4696

Ocampo (Migration) [2018] AATA 4696 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alpha Catherine Ocampo

CASE NUMBER:  1715847

HOME AFFAIRS REFERENCE(S):           BCC2017/1825607

MEMBER:John Cipolla

DATE:9 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2018 at 3:37pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment – made redundant – failure to secure sponsor – accused of credit card fraud by employer – obtained qualifications – range of employment experience – death threats from employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 18 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 did not comply with condition 8107(3) of her Subclass 457 visa because the applicant ceased to work in her nominated occupation in her most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in her most recently approved nomination for the visa was Moubin Pty Ltd. The Department had information before them that indicated that the applicant ceased work with the sponsoring business on or before 1 December 2016. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 457 visa. The NOICC was dated 10 July 2018.  The NOICC indicated that the applicant had ceased working for her sponsoring employer effective 1 December 2016 and consequently she was in breach of condition 8107 attached to her subclass 457 visa.

6. In response to the NOICC the applicant provided a range of reasons as to why her visa should not be cancelled. The applicant stated that her sponsoring employer advised her that the subclass 457 Visa application had cost them a lot of money and requested the applicant to pay $300 a week from her salary to pay off these costs. The applicant stated that her employer wrongly accused her of stealing money from the credit card of a customer and as a consequence she was not rostered on for shifts for more than 3 months. The applicant stated that during this period she did not engage in work outside the sponsoring business. The applicant stated that after this 3 month period she was made redundant and the redundancy was backdated. The applicant stated that she was not paid her salary entitlements. The applicant stated that when she informed her sponsoring employer that she wanted to inform the Department of Immigration about her circumstances she received death threats from the sponsoring employer and one of their associates. The applicant claims that she was offered a payment of $5000 on the basis that she not notify the Department of Immigration about what had transpired since the grant of her visa. The applicant stated that she had been hiding away in her unit since the threats had been made and was afraid for her life. The applicant stated that she had considered lodging an application for permanent residence and had been looking for an employer to take on the 457 visa sponsorship.

7. The Department of Immigration proceeded to cancel the applicant’s subclass 457 Visa in a decision made on 18 July 2017. The delegate in the decision record noted that the ground for cancellation appeared to exist on the basis that the applicant had ceased employment with her sponsoring employer with effect from 1 December 2016 and that the period during which the applicant ceased employment exceeded 90 consecutive days. The Departmental delegate took into consideration the applicant’s response to the NOICC, however the delegate having regard to the relevant considerations as to whether or not the visa should be cancelled concluded the reasons for not cancelling the visa were not outweighed by the grounds for cancelling the visa.

8. The applicant made an application for merits review with the Tribunal on 21 July 2017. The applicant annexed a copy of the Departmental cancellation decision to the application for review.

9. The Tribunal set the matter down for a review hearing on 13 September 2018 at 10am. An invitation to the hearing was provided to the applicant at the provided address for service and clearly spelt out the time and date of hearing. The applicant failed to attend the hearing and as a consequence the Tribunal made an interim dismissal order. The applicant sought reinstatement of the review on the basis that she had misread the hearing invitation and that it was her intention to attend the hearing. Based on the evidence provided to it the Tribunal agreed to reinstate the review and a second hearing was arranged for 5 October 2018.

10. The applicant attended the hearing on 5 October 2018. At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review.

11. The applicant gave her name and date of birth. The Tribunal asked the applicant when she first arrived in Australia. The applicant stated she arrived in Australia in September 2011 as the holder of a Student visa valid for 2 years. The applicant stated that she undertook her initial study in Sydney at Mega College completing a Certificate III in Business followed by a Certificate IV in Business, courses that took 2 years to complete. The applicant stated that she made satisfactory academic progress and was awarded certificates for both courses. The applicant then undertook a Certificate in Management in 2013 at Loura Business College in Parramatta. The applicant stated that she successfully completed this course in just under 2 years and obtained a certificate of satisfactory completion. The applicant then enrolled in an Advanced Diploma of Hospitality at Evolution College in Sydney a course of almost 2 years duration which she successfully completed and was awarded an Advanced Diploma in September 2016.

12. The Tribunal asked the applicant the total cost of these courses and she advised more than $30,000.

13. The Tribunal asked the applicant whether she worked from September 2011 until September 2016 during the period that she studied. The applicant stated that she initially worked at a timber factory in Wetherill Park for approximately 7 months. She then obtained work as a nanny for a family in Rosebery over the next 2 to 3 years. The applicant then obtained a position with the nominating business Moubin Pty Ltd.  She initially worked as a dancer for a club as the business owned a strip club in Pitt Street Sydney called Men’s Gallery.  The applicant stated that she undertook waitressing as well and worked her way up to the position of Assistant Manager at which time the business agreed to sponsor her for a Subclass 457 visa.

14. The Tribunal asked the applicant for a description of her role as Assistant Manager. She advised that she oversaw the reception at the club she would take reservations from patrons and would deal with customers, answer phone calls and deal with any complaints.

15. The Tribunal asked the applicant why she ceased to work for the nominating business in the last week of November 2016. The applicant stated that the manager and the owner of the business advised her that they were conducting a review of the club. They advised the applicant that they wanted her to cease working during this period. The applicant stated that further to this she had been accused by the manager of the club of using the credit card details of a customer unlawfully, something that the applicant vehemently denied. The applicant advised her manager that he could check the videos of the club which would confirm that she was not involved in credit card theft. The applicant stated that she advised the manager to report the incident to police for an investigation and the manager warned her not to report anything to the police or to the Department of Immigration.

16. The applicant stated that she had not been able to manage to find a new sponsoring employer since she ceased work with Moubin Pty Ltd in late November 2016. She advised that she did not know what options were available to her. The Tribunal asked the applicant whether she currently had permission to work and she advised that she did and was working for the Australian Turf Club at Randwick and Rosehill.

17. The applicant stated that she had received death threats from her former employer. The Tribunal asked the applicant whether she had been to the New South Wales police with regard to these threats. The applicant stated that she was too scared to go to the police because of the connections that this business may have. The Tribunal noted that the applicant appeared to have a significant bruise under her right eye and asked her whether she had been assaulted or threatened leading to the bruise. The applicant stated that she was recently moving accommodation and the right side of her head collided with a trolley that she was using to move boxes.

18. The applicant advised that she had worked very hard for her former employers and had treated them like family. The applicant stated that she also looked after girls working in the strip club and on a number of occasions took drug affected or intoxicated girls to St Vincent’s Hospital for treatment.

19. The Tribunal asked the applicant why she would have not returned to the Philippines if she believed that her life was at risk. The Tribunal asked the applicant what was keeping her in Australia. The applicant stated because there were better job opportunities and prospects in Australia. She stated that there were limited opportunities for a woman of her age in the Philippines.

20. The Tribunal asked the applicant what hardship she would experience as a consequence of her visa remaining cancelled. The applicant stated that she had studied for almost 6 years in Australia and had always complied with her student visa conditions. The applicant stated that there would be limited job opportunities available to her in the Philippines. The Tribunal commented that this was untested as the applicant had accumulated a number of certificates and diplomas in Australia and no doubt her English language skills had substantially improved as a consequence of her residency here, and that these attributes would make her more marketable in the Philippines. The applicant reiterated that there were limited work opportunities in the Philippines, limited capacity to earn good money and that these factors were a concern to her.

21. The Tribunal asked the applicant whether there were any other relevant matters that she wished to raise. The applicant asked the Tribunal what options were available to her. The Tribunal advised that it was a merits review body and not able to give the applicant advice and suggested that it would be in her best interests to pursue independent migration advice around what options were available to her. The Tribunal also advised the applicant that if she was the subject of further threats by her former employer that it would be in her best interest to go to the New South Wales police for appropriate help and support. The hearing concluded.

    Does the ground for cancellation exist?

22. 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. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

23. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 5 September 2016 on the basis of a nomination by Moubin Pty Ltd (the sponsor). The sponsor advised the Department that the applicant ceased employment with them effective 1 December 2016. The applicant has confirmed that she ceased work for the sponsor in the last week of November 2016.  The applicant stated that prior to the grant of the Subclass 457 visa she undertook part time work with this business in a variety of roles.

24. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment with Moubin Pty Ltd.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

25. 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

26. 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’.

27. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. At the hearing the applicant provided details of her immigration history.  This indicates that from September 2011 until September the applicant completed a number of certificate courses and finally completed an Advanced Diploma of Hospitality.  During the time she was studying the applicant worked in a timber factory, as a nanny, a dancer and a waitress and eventually an assistant manager for the sponsor Moubin Pty Ltd.

28. The applicant was asked at the review hearing whether she had managed to find another sponsoring business since ceasing employment with the sponsor in late November 2016 and she advised that she had not and did not know what options were available to her in this respect.

29. At the hearing, the Tribunal explained to the applicant that the purpose of the 457 visa is for her to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with Moubin Pty Ltd in late November 2016, soon after the grant of her 457 visa, she has not been able to secure another nomination. In response, the applicant stated that she had difficulty with the sponsor who had made death threats towards her when she advised she would report the sponsor for making her pay back the cost of her nomination, had made her redundant and falsely accused her of credit card fraud. Despite these threats the applicant did not go to the police.  She claims she failed to do so because of the links the sponsor had and that she was in fear of her life.  The Tribunal asked the applicant why, in these circumstances she did not return to the Philippines and given her failure to secure a new sponsor why she had not returned home.  The applicant advised that there were better work opportunities available to her in Australia where pay and conditions were far superior to those in the Philippines where a person can only earn a maximum of $500 per month.  The Tribunal noted that the purpose of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if she found it difficult to secure an approved nomination then this meant she was not able to fulfil the purpose of the 457 visa and that this weighed strongly in favour of cancelling the visa.

30. The Tribunal also noted that the applicant’s 457 visa had been granted until 2020 and that given the length of time still to run on that visa it would be difficult to set the cancellation aside without an approved nomination as the conditions attached to the 457 visa, and the protections for temporary workers in Australia, requires there to be an approved sponsor for whom the applicant can work in accordance with approved terms and conditions of employment, which would need to be satisfied as part of the nomination approval.

31. 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 her most recent 457 visa was to work in the occupation of Café and Restaurant Manager for Moubin Pty Ltd, that purpose ended on 1 December 2016 when the applicant ceased working for that company. The evidence indicates that the applicant has made no effort to find another sponsor or to obtain advice about her migration predicament.  It has now been almost 2 years since the applicant ceased working for her approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

32. 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 her approved sponsor and her inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

33. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. 

34. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as she was unable to secure another nomination within the 90 day period. The Tribunal finds that the applicant did not make efforts to secure another nomination and that she has remained in Australia because of the fact that her earning capacity in Australia was far greater than that in the Philippines.  The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.

35. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. At the hearing the applicant stated that if the visa is cancelled she will have to return to the Philippines where at her age it will be difficult to find employment and where employment terms and conditions are less superior to those that exist in Australia.

36. The Tribunal notes however that in the 7 years the applicant has now spent in Australia have enabled her to obtain a raft of qualifications and have no doubt substantially improved her English language skills and she has now obtained a range of employment experience, and these factors will enable her to re-establish herself in the Philippines.

37. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa with work rights and will only be subject to detention if she does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

1. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

2. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor close to 24 months ago. As indicated above, the applicant can, should she wishes to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to her be approved in future.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   John Cipolla
   Senior Member