Papavanis (Migration)

[2021] AATA 2373

Papavanis (Migration) [2021] AATA 2373 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nikos Papavanis
Mrs Luljeta Papavani
Miss Ntenisa Papavani
Mr Ntonalnt Papavanis
Miss Ntenanta Papavani

CASE NUMBER:  2100403

HOME AFFAIRS REFERENCE(S):          BCC2020/1916215

MEMBER:Noelle Hossen

DATE:22 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision 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 22 June 2021 at 9:40am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment ceased over 60 days – impact of the COVID-19 pandemic – employment not formally terminated – applicant seeking further sponsored positions – financial hardship – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named 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 first named applicant, (hereinafter referred to as “applicant”) has not worked for a period exceeding 60 days and does not have a nomination from a new sponsor or any other pending nominations with a new sponsor. The applicant had remained in Australia for over six months since ceasing employment with the approved sponsor. The issue in the present case is whether the 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 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 Decision of the Delegate to cancel the visa was provided to the Tribunal by the applicant.

5.    The visa was granted on the 8 June 2017 and was due to expire on the 8 June 2021. The Department issued a Notice of intention to cancel the visa on the 30 November 2020. The visa was cancelled by the Department on the 12 January 2021.

6.    The applicant was born in Albania on the 27 January 1971,

7.    The approved sponsor who nominated the applicant was Emine Mullalli (hereinafter referred to as “the sponsor”). The nomination was approved on the 22 July 2016. The sponsor had advised the Department that the applicant ceased employment with them on the 30 June 2020.

8.    In the paragraph dealing with Particulars of the ground of cancellation in the Decision of the Delegate it is stated that the Notice of intention to consider Cancellation was issued by the Department on the 30 November 2020.The applicant responded to the Notice through a migration agent on the 11 December 2020.

9.    The Decision states as follows:

“The migration agent, acting on behalf of the visa holder, has not addressed whether or not the ground for cancellation exists. The agent provided the following claims:

“· Since ceasing employment with the sponsor, the visa holder has been continuously looking for sponsors. However, given the COVID-19 pandemic, he has had no opportunity so far to find a new sponsor in his field which is solid plasterer.

· The migration agent requests for a consideration of the pandemic and the pace of slow job growth and therefore, for a consideration of an extension of time in order for the visa holder to find a new sponsor.”

1. Prior to the hearing the representative for the applicant indicated by e-mail correspondence to the Tribunal that all the applicants wanted to participate in the hearing namely the applicant’s wife and 3 children who were triplets. The Tribunal agreed that they could all attend the hearing. However, on the day of the hearing the second named applicant namely the spouse of the applicant was not in attendance. The three children did attend the hearing but were not required to give oral evidence at the hearing.

2. On page 4 of the submissions provided by the representative it is stated as follows in writing:

“Over the course of the last 3 years, the applicant and his family had become accustomed to the Australian lifestyle, and the applicant wanted to continue residing in Australia legally while maintaining all visa conditions on his Subclass 457.

Unfortunately, the sponsor ended the employment and reported the situation to the Department of Home Affairs.

He believes that there may be some miscommunication or confusion as to the status of his employment. The employer was like a friend to Mr. Nikos Papavanis.

The applicant’s employer- Emine Mullalli operating as a sole trader did not provide any termination notice to the applicant-Mr Nikos Papavanis. He last worked for his employer on the 4 June 2020.After this period the employer’s only advised was that due to the pandemic there was not sufficient work to offer to Nikos.

Mr Nikos Papavanis was understanding in this matter but was very worried about how he will support his family during these periods without any pay. It was very difficult for Nikos and his family to sustain during the pandemic especially without work being given to him.”

1. The position of the applicant was that he was unaware that his employment had been terminated. At the hearing he was asked whether he had spoken to the employer after he had been told that there was no work available and that they would call him if there was work and he replied that he had not done so. He was questioned as to why he had not checked in with his employer occasionally to find out whether work was available, but he said he did not do so.

2. He had stated that due to the pandemic work had been decreasing but on the 4 June 2020 being the last date that he attended for work he was told that they would call him if there was work available.

3. He stated at the hearing that he did not hear from his employer (the sponsor) ever again. He was asked whether he had any concerns after not hearing from his employer for a month. He said he did not. He was asked whether he had concerns about breaching his obligations with the conditions of the visa as he was required to be working. His answers were vague but effectively he said that he did not understand the terms of the visa.

4. He was asked whether he had been the one who applied for the visa. It took some time to establish from the applicant the circumstances leading to the acquisition of the visa. He said that he arrived in Australia on a tourist visa and that he wanted to live and work in Australia. He came alone without his family. His employer (the sponsor) decided for him to remain in Australia to work for him.

5. He said that he did not understand the terms of the visa and its obligations as he did not speak English.

6. The answers given orally by the applicant are not plausible as he should have been aware of the conditions of his visa or should have sought advice regarding the situation. The Tribunal does not accept that his migration agent miscommunicated the reality of his situation when the agent responded to the Department on the 11 December 2020.

7. The applicant appeared before the Tribunal on the 10 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Hetem Hajdari and Vid Amidzic.

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

9. The applicant was represented in relation to the review by their representative, Ms Nissha Mellwani.

10. Prior to the hearing the Tribunal received a long submission prepared by the representative and the following documents namely: Statutory Declaration from the applicant, letter from Hetem Hadjari confirming his intention to sponsor the applicant, letters from the applicant and his family members, resume, academic reports of his children, evidence of applying for scholarships and correspondence with previous migration agent.

11. In his Statutory Declaration declared on the 9 June 2021 the applicant summarised his case as follows:

12. I was sponsored and was working for Emine Mullalli under the 457-visa granted on the 8 June 2017.

13. I do not currently work with the above-named employer and have been on a bridging visa waiting for my Administrative Review Tribunal hearing.

14. My 457 visa was cancelled on the 12 January 2021.

15. I am a solid plasterer and I normally work on jobs as directed by my employer. The last day that I have been given work by my employer was 4 June 2020.

16. Due to this notice I seek assistance to request immigration to give me time to find another sponsor, but my visa was later cancelled because I did not give enough reason for them not to cancel my visa.

17. I found the sponsor in the meanwhile and now have the opportunity to be sponsored if my AAT application is successful and I am able to lodge a visa while in Australia.

18. It appears that the applicant is of the view that he did not breach the conditions of his visa as he says that his employment was not formally terminated. He says that there was a miscommunication with his first migration agent as she did not understand what he meant.

19. He stated at the hearing and in writing that he was of the view that his employment had not been terminated and it had been put on hold.

20. On Page 5 of the submissions prepared by his representative he stated as follows:

“The employer did not provide him with any further information or communicate to him about his employment status. He was not informed of his employer’s intention and the subsequent notice given to the Department of Home affairs advising them of the termination of employment of Mr. Nikos Papavanis.

He had to support his family during this period but was unable to work anywhere else due to his visa condition. It was a stressful and confusing time and there was a lot of pressure on the family as they were unsure of their status, which also affect the children’s schooling.

The children contributed to the family’s finances by working part time.

The applicants became aware of the seriousness of their circumstance when they received the NOITTA-Notice of Intention to Take action in December 2020.

The applicant met with their migration agent at the time -Joniada Murdocca, who advised him with further visa options and obligations on his current 457 visas

After receiving this notice, he seek their assistance to request immigration to give him time to find another sponsor but at the time did not provide information and evidence as to why their visa should be cancelled.”

1. The Delegate of the Department was satisfied that the applicant had breached condition 8107(3) (b) because the period during which the applicant has ceased employment has exceeded 60 consecutive days.

2. It is stated in the Decision Record as follows:

“According to Departmental records and the migration agent’s response to the NOICC, the visa holder does not have any other pending nominations with another sponsor after the most recent nomination for the visa was approved with the sponsor Emine Mullalli.

In the response to the NOICC, the migration agent claims that since ceasing employment with the sponsor , the visa holder has been continuously looking for new sponsors however given the COVID-19 pandemic, he has had no opportunity so far to find a new sponsor in his field which is solid plastering. While I acknowledge that the visa holder’s opportunity to obtain new employment with another sponsor has been impacted by COVID-19. I note that the migration agent and the visa holder have not provided any evidence for the visa holder’s attempts to find another sponsor to nominate him. I also note that the visa holder has remained in Australia for over six months since ceasing his employment with the sponsor. I consider this has been a reasonable amount of time for the visa holder to pursue his options to find a new approved sponsor, to be granted another visa or to depart Australia.

1. At the hearing the Tribunal did receive evidence from two witnesses. Hetem Hajdari indicated that he intended to lodge an application to nominate as a new sponsor. Mr Admidzic stated that he wanted to sponsor the applicant but was unable to do so as he did not have the capacity to so previously as the work that he anticipated would be coming into his business did not eventuate

2. As at the date of the hearing there was no pending applications for a nomination for a new approved sponsor and the applicant had not been working for a period of almost a year.

3. The Tribunal does have empathy for the situation that the applicant finds himself in because the Pandemic has caused a decrease in the availability of work in his field. The fact remains that he was granted a Temporary work visa for the purpose of employment with an approved sponsor in a skilled occupation.

4. The Tribunal indicated that the submissions and all documentary evidence had been read by the Tribunal. The Tribunal did ask the representative and the applicant whether they wanted to add anything further to the oral evidence at the end of the hearing.

5. Based on the evidence the Tribunal is satisfied that the applicant has breached condition 8107(3) (b) of his temporary Work skilled Visa because the applicant had ceased employment for a period of 60 consecutive days.  

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

1. 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?

s.116(1)(b) - non-compliance with conditions

1. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the applicant did not comply with a condition of their visa. In this instance condition 8107 (3)(b) attached to the applicant’s visa. This condition requires that if the applicant ceases employment, the period during which such employment ceases must not exceed 60 days.

2. The condition was attached to the applicant’s visa and he should have been aware of the implications.

3. 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 the 4 June 2020.

4. The Tribunal does not accept the oral evidence of the applicant that he did not consider that his employment had been terminated. The oral evidence of the applicant was that he did not speak to the employer after that date and expected that his employment would resume later. He was asked whether he had made enquiries when he did not hear from his employer after a period, but he said that he did not do so. He was asked whether he had received leave entitlements at the end of his employment, but he did not give a clear answer to that question. The Tribunal did not receive any written evidence such as his pay slips from the applicant or his representative to clarify whether the applicant received his leave entitlements at the end of his employment on the 4 June 2020.

5. It seems unusual for an employer to not have any contact with an employee for a period of 6 months and for the employee to not know that his contract had been terminated. The applicant should have taken the appropriate steps to reinstate his contract if the termination was improperly dealt with. His representative said that he had trusted his employer and did not want to cause any difficulties for him.

6. The oral evidence surrounding the issues of his cessation of employment on the 4 June 2020 of the applicant is not accepted by the Tribunal as it is not supported by the representations made by his first migration agent to the Department after receiving the NOICC. It is inconsistent with the other evidence that he was trying to find a new sponsor at the time of the cancellation but wanted an extension of time as communicated to the Department by his first migration agent.

7. The applicant cannot maintain that there was a miscommunication with his employer as clearly he should have clarified the matter as he was aware that he had a condition on his visa and he had to be employed by his sponsor and that he could not be unemployed for a period not exceeding 60 days.

8. In any event the matter is being determined by the Tribunal approximately 1 year after the event as the cessation of his employment was on the 4 June 2020.The applicant has not worked for an approved sponsor in excess of 60 days.

9. The Tribunal 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).

Consideration of discretion / conclusions

1. 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

1. 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.

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

1. The subclass 457 visa is for skilled workers from outside of Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

2. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a solid plasterer on a temporary basis.

3. The employment with his approved sponsor ceased on the 4 June 2020 because the owner was finding it difficult to find work for his employees because of the pandemic.

4. The applicant decided to remain in Australia with his family despite having no work.

5. The Tribunal finds that, as of the day of the Tribunal hearing the applicant is not employed by an approved standard business sponsor.

6. The Tribunal further finds that the Subclass 457 Visa would have ceased on the 8 June 2021 in any case. It follows that it is no longer possible to reinstate his visa.

7. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker, if it cannot find appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of skilled occupations. The 457 visa is of limited duration related to working for a sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on the 4 June 2020.The Tribunal places significant weight on this consideration against the applicant’s case.

the extent of compliance with visa conditions:

1. The ground of cancellation arose when the applicant ceased working with his sponsoring employer in June 2020.The applicant had an opportunity to rectify the breach by commencing employment as a solid plasterer with another sponsor that could nominate him for a position of solid plasterer within 60 days.

2. The applicant did comply with his visa conditions by not working for another sponsor. however, he was unable to find another sponsor who has nominated him for a temporary work visa prior to the hearing. On the day of the hearing the applicant did not have a pending application by a new sponsor or any approved nomination. He had not worked for a period of one year which is a substantial breach of condition 8107(3).

3. Apart from this application the subject of the review there is no evidence that the applicant has not complied with his visa obligations and the Tribunal places some weight in favour of the applicant’s case in respect of the facts as stated in this paragraph.

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

1. The Tribunal accepts that the applicant, his wife and 3 children have been living in Australia since 2017 and that they would all like to remain living in Australia.

2. The Tribunal is satisfied that the applicant and his family may suffer some financial hardship in relocating to Albania.

3. The Tribunal did not have evidence of the financial situation of the applicant. At the hearing the applicant did say that they still own a home in Albania. He said that other than a sister of his wife who lives in Shepparton in Victoria he does not have any family in Australia.

4. The Tribunal is satisfied that the family do have friends and family members in Albania and that they should have some emotional support in Albania when they return to their home country.

5. The Tribunal accepts that the applicant and his family may find it difficult to return to Albania due to the travel restrictions in place as a result of the COVID pandemic. The applicant and his family may be able to apply for a Bridging Visa E that will enable them to remain in Australia temporarily.

6. The Tribunal does attach some weight in favour of cancelling the visa, as the applicant still owns a home and has family and friends in Albania and therefore that will ease the impact of financial or emotional hardship as the family will have support from family members and friends in Albania.

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:

1. The Tribunal accepts that the circumstances in which the ground for cancellation arose may have been beyond his control due to the pandemic. Nevertheless, it is the context of a temporary visa for a specific purpose, which has now ceased as there are difficulties in that there is a lack of work in his field in Australia.

2. There is no evidence before the Tribunal regarding the impact on any victims of family violence.

3. The fact that the effects of the pandemic caused the work situation to be affected and resulted in a lack of work for the applicant is a matter that the Tribunal has considered and attached some weight in favour of the visa not being cancelled.

past and present behaviour of the visa holder towards the department:

1. The Tribunal accepts the applicants claims that he has been co-operative with the Department and previously complied with visa conditions.

whether there would be consequential cancellations under s.140:

1. Whilst the applicant’s wife and children visas were also cancelled because of the cancellation, the Tribunal notes that the consequence will not result in the separation of the applicant from his wife.

2. 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 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.

3. In addition, the Tribunal is satisfied that, other than providing emotional or other support to the applicant, the second, third, fourth and fifth applicants did not contribute in any way to the circumstances that led to the applicant’s non-compliance with condition 8107 (3).

whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

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

·any other relevant matters 

1. 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 is not affected by the cancellation of the applicant’s visa. The Tribunal does attach weight in favour of cancelling the visa as the principles of unity will not be affected by the Tribunal’s decision to cancel the Visa.

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

DECISION

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

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

Noelle Hossen
Member