Pandatuan (Migration)

[2021] AATA 3543

Pandatuan (Migration) [2021] AATA 3543 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Freddie Cuaresma Pandatuan

CASE NUMBER:  2105624

HOME AFFAIRS REFERENCE(S):          BCC2020/1543264

MEMBER:Antonio Dronjic

DATE:18 August 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 18 August 2021 at 11:06am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– applicant has not complied with the condition 8107 – has not been employed for a period exceeding 60 days – an illegal non-citizen – applicant applied for a spouse visa – COVID-19 pandemic –applicant was not able to secure another nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 82, 116, 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 April 2021 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.

   Background to the cancellation of the applicant’s visa

3. The decision record of 26 April 2021 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 27 March 2018, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years;

   ·The standard business sponsor who most recently nominated the applicant to work as a panel beater was Ama Group Solutions Pty Ltd (the sponsor);

   ·On 30 April 2020, the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 30 September 2020;

   ·On 18 October 2020, the applicant lodged a spouse visa application with the Department and was granted a bridging visa ‘A’;

   ·On 20 October 2020, the applicant’s representative responded to the NOICC;

   ·On 26 April 2021, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal on 30 April 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

5. On 2 July 2021, 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 telephone hearing scheduled for 17 August 2021.

6. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. The applicant is 42 years of age and a national of the Philippines. His former wife passed away in March 2018. The applicant has four underage children from that marriage who are living in the Philippines with his sister in law. The applicant is financially supporting his children by sending approximately $500.00 per month. His sister and brother live in the Philippines and he does not have any relatives in Australia.

8. Prior to arriving in Australia as the holder of a Subclass 457 visa in April 2018, he worked as a panel beater in Bahrain for approximately three years. He owns a house in the Philippines where his nephew currently resides rent free.

9. In April 2018, the applicant commenced employment at Gemini Accident Repair Centres Pty Ltd. He worked there until 30 April 2020. The applicant gave evidence that he ceased his employment at the sponsoring business because he was harassed by his former employer. He stated that, because of the COVID-19 pandemic, there was not enough work for panel beaters, and he was asked to do cleaning jobs instead.

10. He claims in his evidence that in June 2021 he found new employment as a panel beater at Westwood auto panel, an auto repair business located in Deer Park, Victoria. He is employed on a full-time basis and is earning $1,300 per week. This business did not sponsor or nominate him for a temporary work visa in Australia.

11. The applicant currently lives with his de-facto partner, Ms Leonila Rom and her 22-year-old child in St Albans, Victoria. Ms Rom works as a housekeeper at Holliday Inn. Relying on this relationship, on 18 October 2020, the applicant lodged an application for a spouse visa with the Department and was granted a bridging visa ‘A’ on that day.

12. The applicant stated in his evidence that he currently holds a bridging visa ‘A’ granted in association with his application for a spouse visa that was lodged with the Department on 18 October 2020. The Tribunal noted that the applicant’s bridging visa ‘A’ was also cancelled by operation of law when his substantive visa was cancelled on 26 April 2021.

13. The Tribunal explained that, pursuant to s.82(7A) of the Act, a bridging visa ceases to be in effect the moment a certain ceasing event happens, rather than at the end of the day on which the event occurs. If the “event” is the cancellation of the substantive visa held, this means that the bridging visa would cease the moment that the person’s substantive visa is cancelled. A delegate does not have to make a decision to cancel a bridging ‘A’ visa. It ceases automatically, by operation of law.

14. The Tribunal noted that the applicant has been an illegal non-citizen from 26 April 2021 and, despite not having permission from the Department, he worked in Australia from June 2021. The Tribunal suggested that the applicant urgently contact the Department in order to legalise his immigration status in Australia.

15. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application.

17. The applicant confirmed in his evidence that in his response to the NOICC, he stated the visa should not be cancelled because he applied for a spouse visa whilst still holding a substantive visa, that he was unable to find a new sponsoring employer because of the COVID-19 pandemic, that the Tribunal should consider compassionate grounds on the basis of the passing of his wife and his new relationship with Ms Rom, that he complied with other conditions imposed on his Subclass 457 visa and that the Tribunal should consider that he is financially supporting his four children living in the Philippines.

18. The Tribunal asked the applicant if there is anything else that he wants to raise with the Tribunal. The applicant reiterated that he lives with his de facto partner and stated that if he has no work, he will have no money.

19. The Tribunal invited the applicant’s representative to provide oral submissions. The representative stated that he has no further submissions.

20. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

21. 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

22. 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?

23. 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. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

24. 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 30 April 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal 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 Migration Regulations 1994 (the 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 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]

28. 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

29. 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.

30. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a panel beater on a temporary basis. The applicant lost his employment on 30 April 2020. The applicant decided to remain in Australia. He claims that he was unable to find new employment until June 2021 because of lack of employment opportunities due to the COVID-19 pandemic.

31. 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.

32. 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 is 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 his sponsor on 30 April 2020.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

33. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 30 April 2020.  The Department did not proceed with the visa cancellation until 26 April 2021. 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.

34. 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 his visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’.

35. However, the applicant did not work for the business that is an approved sponsor and that successfully nominated the applicant for the position of panel beater from 30 April 2020 to the present time. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 15 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which the ground for cancellation arose

36. The applicant claims that he was harassed by his former employer. He stated that, because of the COVID-19 pandemic, there was not enough work for panel beaters, and he was asked to do cleaning jobs instead.

37. 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 his 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. At the Tribunal hearing, the applicant gave evidence that in June 2021 he commenced full-time employment at Westwood auto panel, an auto repair business located in Deer Park, Victoria where he earns approximately $1,300 per week.

39. As the Tribunal explained to the applicant, his bridging visa ‘A’ granted on 18 October 2020 in relation to his application for a spouse visa was also cancelled by operation of law on 26 April 2021 when his substantive Subclass 457 visa was cancelled.

40. The Tribunal finds that that the applicant has been an illegal non-citizen from 26 April 2021 and, despite not having permission from the Department, he worked in Australia from June 2021. The Tribunal gives significant weight to this consideration.

    Degree of hardship that may be caused to the applicant

41. The applicant stated that his visa should not be cancelled because he applied for a spouse visa whilst still holding a substantive visa, that he was unable to find a new sponsoring employer because of the COVID-19 pandemic, that the Tribunal should consider compassionate grounds on the basis of the passing of his wife and his new relationship with Ms Rom, that he complied with other conditions imposed on his Subclass 457 visa and that the Tribunal should consider that he is financially supporting his four children living in the Philippines. He reiterated that he is currently living with his de facto partner and her 22-year-old child.

42. The Tribunal accepts that the applicant lodged an application for a spouse visa on 18 October 2020 and that the decision is pending with the Department.

43. The Tribunal further accepts that the applicant will suffer financial hardship if the visa remains cancelled and the applicant is required to depart Australia. He will lose his job and ability to financially support his children in the Philippines. However, the Tribunal notes that the applicant is not entitled to work in Australia as he is not holding a visa that would entitle him to do so.

44. The Tribunal acknowledges that because of the COVID-19 pandemic, it may have been more difficult to find a job in Australia. Apart from the applicant’s statement given at the hearing, there is no evidence before the Tribunal of the applicant’s attempts to find a new job between April 2020 and June 2021.

45. The Tribunal accepts that both the applicant and his de facto partner, Ms Rom, will be adversely affected if the applicant is required to depart Australia. However, the purpose of granting a Subclass 457 visa is not to enable the applicant to stay in Australia and wait for the outcome of his spouse visa application. 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.

46. The Tribunal has taken into consideration the applicant’s evidence that his four children, brother and sister live in the Philippines and that he does not have any relatives in Australia. The Tribunal has taken into consideration that the applicant owns a house in the Philippines. The Tribunal is satisfied that the applicant would be able to re-establish himself in the Philippines, given his education and work experience obtained in Australia and overseas.

47. Balanced against any potential hardship to the applicant 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.

48. In any event, the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he 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 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

49. The applicant is currently an illegal non-citizen. 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 him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

50. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107-condition imposed on his 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 to the Regulations. 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 he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

1. 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.

2. 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.

   Whether there would be consequential cancellations under s.140

3. There are no consequential cancellations.

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

4. 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).  

5. 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. 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

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

7. Having 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

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

   Antonio Dronjic
   Member