Pepermans (Migration)

[2018] AATA 5804

Pepermans (Migration) [2018] AATA 5804 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Philip Lodewijk E Pepermans
Mrs Heather Margaret Johnston Price
Mr William Arthur Pepermans
Mr Alexander Richard Pepermans

CASE NUMBER:  1700607

HOME AFFAIRS REFERENCE(S):           BCC2016/2665355

MEMBER:Karen Synon

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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 18 December 2018 at 2:17pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – Sales and Marketing Manager – ceased employment with sponsor for more than 90 days – new nomination lodged – departmental delays – evidence not submitted – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359, 360
Migration Regulations 1994, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40
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 6 January 2017 made by a delegate of the Minister for Immigration and Border Protection 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 6 January 2017 the basis that the first named applicant (‘the applicant’) had not complied with Condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel his visa on 11 January 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

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

5. The applicants were represented in relation to the review by their registered migration agent.

   Jurisdiction of secondary applicants

6. 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.

   Invitation to comment and provide information

7. On 4 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 18 February 2014.  It was originally valid to 18 February 2018 but was cancelled on 6 January 2017.  Your visa was sponsored by ANTHEA STREET INVESTMENTS PTY LTD AFT ANTHEA STREET TRUST.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 15 April 2016.  On 6 January 2017, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

8. The invitation was sent to the applicants’ authorised recipient and registered migration agent’s email address provided in connection with the review.  The applicant was advised that if a response or comments were not provided in writing by 18 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide comments or a response within the prescribed period and no extension was been sought or granted within the prescribed period.

10. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via his authorised recipient at the advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

11. In proceeding to decision the Tribunal notes correspondence from the applicant’s representative 30 October 2018 that they were “unsuccessful in receiving a response from [the applicant] but that their office has been notified that he does have permanent residency in Australia”.  Given this information a Tribunal officer contacted the applicant by phone on 5 November 2018 and left a message for him to return the call.  Later the same day the applicant telephoned the Tribunal.  A case note records that he advised he had been in hospital and he had completed a withdrawal form that should be forwarded to the Tribunal shortly.  Given a period of over six weeks has passed since then, with no withdrawal received, the Tribunal has determined to proceed to decision.

12. 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

13. 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?

14. 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 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

15. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 18 February 2014 to occupy the nominated position of Sales and Marketing Manager at ‘Anthea Street Investments Pty Ltd AFT Anthea Street Trust’.

16. On 13 December 2016 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3)(b) because the department was advised in writing that the applicant had ceased employment with the sponsor effective 15 April 2016.

17. The applicant did not give comments or respond to the information put to him in accordance with the provisions of s.359A and s.359(2) of the Migration Act.  Therefore the only information before the Tribunal in relation to the cancellation is that provided to the department in submissions dated 21 December 2016 and 3 January 2017.  In those submissions the applicant relevantly contended that the grounds for cancellation did not exist as he was offered and accepted a new positions within 90 days of ceasing employment with Anthea Street Investments Pty Ltd but that considerable delays in the department processing meant that this nomination was not considered within the specified period enabling him to recommence employment for another sponsor.

18. The primary decision records that, in response to the NOICC the applicant (in summary) submitted that:

    ·     He ceased employment with his sponsor on 15 April 2016.

    ·     A new nomination was lodged on his behalf by Alpha Cleaning Supplies Pty Ltd on 12 July 2016.

    ·     There were numerous delays brought on by continued requests from the 457 department and the nomination was unfairly refused.

    ·     A further nomination was lodged in respect of the applicant by Alpha Cleaning Supplies on 21 December 2016.

    ·     If the processing times on the 457 visa fell within the stipulated 28 period, he would not have been outside his 90 day period by much more than a week or two and would certainly have started working for Alpha Cleaning at any stage from 6 July 2016.  It was only the 457 department delay that caused him to be out for employment this lengthy period of time.

    ·     He has at all times abided by the conditions set for him by the Department of Border Protection.

    ·     He has purchased a house in Australia; the family has set down its roots and they will consider remaining in Australia should Alpha Cleaning indicate they are willing to continue with the position.  The family has obeyed DIBP’s every instruction and requirement in order to stay/work within all legal parameters in Australia and have done so in an honourable way.

    ·     His agent was advised that the sponsorship for Alpha Cleaning Services was approved however the report emailed to them said the nomination was refused which seems contradictory in its evaluation.

19. The primary decision also records that the applicant made 13 points attesting to his and his family’s good character and honourable intentions and provided a number of character references which substantiated this claim.  The delegate accepted the applicant and his family’s good character and honourable intentions but noted that these are not at issue in the consideration of cancellation.

20. Despite the applicant’s contention that he only breached Condition 8107(3)(b) due to delays in the department’s processing of anew nomination, the Tribunal relying on the information before it and in the absence of any other evidence provided by the applicant, is satisfied that the applicant ceased employment with his approved sponsor Anthea Street Investments Pty Ltd ATF Anthea Street Trust trading as Custom Solutions Technology Australia on 15 April 2016 and, at the time of his visa cancellation on 6 January 2017, was in breach of visa Condition 8107(3)(b) for a period exceeding 90 consecutive days. Further, there is no information before the Tribunal that the applicant subsequently resumed his employment with Anthea Street Investments Pty Ltd ATF Anthea Street Trust trading as Custom Solutions Technology Australia. Finally, as put to the applicant in accordance with the provisions of s.359A of the Migration Act on 4 October 2018, there is no evidence before the Tribunal that the applicant subsequently became the subject of any other approved nomination within 90 consecutive days of ceasing employment with his approved sponsor, or indeed at any time since.

21. The Tribunal accordingly finds that the applicant has not complied with Condition 8107(3)(b) of his Subclass 457 visa.

22. 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

23. 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’.

24. While the Tribunal notes the information from the applicant’s representative that the applicant is now a permanent resident of Australia, no information has been provided by the applicant as his current employment situation and, despite any subsequently granted permanent residency, the Tribunal must, in the absence of a withdrawal, still determine this application and consider the circumstances in which cancellation arose and whether it should exercise its discretion not to cancel this visa.

25. The applicant has not provided any evidence to the Tribunal but did provide a number of submissions to the Department as to why his visa should not be cancelled.  In addition to stating that his family had purchased a house in Australia, that his children were in school and settled here and that they hoped to stay here permanently, the applicant raised concerns about what he considered to be the delays in processing the nomination which was lodged by Alpha Cleaning Supplies Pty Ltd in respect of him on 12 July 2016.  He also states that this nomination was unfairly refused and that he would not have been outside of his 90 day period by “much more than a week or two “ but for the department’s lengthy period of time in processing this nomination.  The applicant states that the delay (of over 90 days) in starting employment is not in any way his fault or the result of his tardiness or inability to find an alternative sponsor but rather the result of the processing times with the Department.  He would have happily commenced his new employment on 6 July 2016 when offered the position.  Various references attested to the applicant and his family’s good character and the applicant states that it would be very disruptive for him and his family to have to relocate to South Africa when he has a job waiting for him in Australia.

26. While the applicant appears to have been in Australia to work for the sponsor (Anthea Street Investments Pty Ltd ATF Anthea Street Trust trading as Custom Solutions Technology Australia) it is without contention that he is no longer in that employment.  Further, although two nominations in respect of him were lodged by Alpha Cleaning Pty Ltd (on 12 July 2016 and 21 December 2016) neither of these was subsequently approved by the Department and the applicant has not been, since his 457 visa was cancelled, the subject of approved nomination.

27. On the evidence before the Tribunal this appears to be the only time the applicant has breached a visa condition.  There is no evidence to indicate the applicant has been uncooperative with the Department.

28. There is no information before the Tribunal that the applicant, or anyone on his behalf, has indicated to the Department or the Tribunal that he, or anybody else, will suffer any hardship if the visa is cancelled and indeed, on the contrary, information provided by the applicant’s representative is that the applicant is now a permanent resident of Australia.  Therfore no international obligations would be breached as a result of a cancellation.

29. Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa.  The Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage.  There is no evidence before the Tribunal to satisfy it that the applicant currently has an approved or pending nomination in place to work in a skilled occupation.  The Tribunal is satisfied that the applicant has had an invitation to provide any evidence to indicate the ground for cancellation arose in circumstances beyond his control.  He has not taken advantage of this opportunity.  While there is no evidence to suggest the applicant has breached other visa conditions or been uncooperative with the department, he has not availed himself of the opportunity to give evidence to the Tribunal as to why the visa should not be cancelled.  In any case the information before the Tribunal is that the applicant is now a permanent resident of Australia and therefore this cancellation will have no impact on the applicant’s ability to stay in Australia and therefore neither the applicant, nor anyone else, will suffer hardship because of this cancellation.

30. The Tribunal finds that the purpose of the applicant's stay in Australia was to work as a Sales and Marketing Manager for Anthea Street Investments Pty Ltd ATF Anthea Street Trust trading as Custom Solutions Technology Australia on a temporary basis.  The applicant is no longer in this employment.

31. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The 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 employment effective 15 April 2016 and gives this factor significant weight.

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

    DECISION

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

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

    Karen Synon
    Member