Perez (Migration)

[2020] AATA 5041

Perez (Migration) [2020] AATA 5041 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mary Grace Fanugao Perez
Mr Ronald De Guzman Perez
Mr Tyrone Jei Fanugao Perez
Mr Grant Ian Fanugao Perez
Mr Matthew Dominic Fanugao Perez
Mr Elijah Gabriel Fanugao Perez

CASE NUMBER:  2002783

HOME AFFAIRS REFERENCE(S):          BCC2019/5004609

MEMBER:Michael Cooke

DATE:13 October 2020

PLACE OF DECISION:  Sydney

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 13 October 2020 at 2:47pm

CATCHWORDS
MIGRATION – cancellation - Subclass 457 (Temporary Work (Skilled)) visa - Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) – failed to commence employment with sponsor – pregnancy – post-natal depression – position terminated with cleaning job offered – Developer Programmer (ANZSCO 261312) included in Medium and Long-term Strategic Skills List – Australian IT qualification – attempts to find work – application for student visa to regularise status – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48,116(1)(b), 140(1), 189, 198, 348
Migration Regulation 1994, condition 8107, Public Interest Criterion 4013

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 6 February 2020 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 breached condition 8107 on her visa. The cancellation of the other applicants’ visas was automatic pursuant to s.140(1) of the Act. 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 first named applicant appeared before the Tribunal by telephone on 23 September 2020 to give evidence and present arguments.

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

6. 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

7. 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

8. 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(3) was attached to the applicant’s visa. This condition requires:

   (3)       If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   (aa)     subject to paragraph (c), the holder must

   (ii)       if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted

9. The applicant first arrived in Australia on 23 June 2010 on a Student visa along with her husband and three children. On 01 March 2019, the applicant was granted a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457).

10. The nominator advised the Department on 26 August 2019 the applicant had failed to commence employment with them and as such, her employment was terminated effective 05 August 2019.

11. The applicant has admitted to the breach and stated (in her submission) that her breach of the required condition was because she was not left with an alternative. She was on her last trimester of her pregnancy when the Temporary Work (Skilled) (Subclass 457) visa was approved. Her doctor has indicated that her pregnancy resulted in her not being able to commence work within the 90 days stipulated by the condition. She was then unable to work following the birth due to the onset of postnatal depression

12. As the applicant explained sometime in June 2019, in good faith, the applicant expressed her intention to return to work. However, she was informed through the nominator’s previous migration agent that the position no longer existed. Instead she was offered a cleaning job. This resulted in a heated argument between the applicant and the migration agent (she informs) and on which she has elaborated in written submissions.

13. The applicant informs that she was so disappointed when she learnt she would not be given the job that this resulted in further emotional distress and anxiety. She thought of reporting the matter to the authorities. However, because of lack of evidence she decided not to proceed with a legal case against the migration agent and the employer. Also, at that time, she informs her priority was to look after her newborn son, to be strong as a mother and to continue to provide emotional support to her family members - being her husband and three school aged children – and who were equally distressed.

    Consideration of discretion / conclusions

14. 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

15. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·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

16. The delegate informed in his decision (found on the Tribunal’s file) that:

    The ground for cancellation arose because the visa holder failed to commence working with the approved sponsor within 90 days after the visa was granted. In the response to the NOICC, the visa holder indicated the circumstances were outside of her control as she was “treated unjustifiably” by the migration agent, the representative of the sponsor and the sponsor

    Specifically, she claimed that the migration agent “recommended” to her a consultant of the sponsor - Mayank Tailor and “processed nomination application for me and SBS approval for HDN Services Australia Pty. Ltd” [sic]. I note that she has not lodged a formal complaint against the migration agent if she believes that he breached the Migration Agent’s Code of Conduct. Information available to the Department from the Office of the Migration Agents Registration Authority (OMARA) indicates that there is no adverse information against the abovementioned migration agent.

    The visa holder also claimed that the consultant, Mayank Tailor, “agreed to help us to obtain work visa when we first met. Then changed his claimed that he is now acted as a consultant for HDN Services Australia Pty. Ltd. on Jun 2019. He served as the middleman between me and HDN Services Australia Pty. Ltd. Most of the transactions and conversations was managed by this man” [sic]. I consider that it is reasonable for a company to have a dedicated person to deal with visa matters. Lastly, she claimed that the sponsor committed a fraudulent act because they did not give her the “genuine job offer”.

    The visa holder’s visa was granted on 01 March 2019 and as per condition 8107, the visa holder was due to commence her employment with the sponsor by 30 May 2019. The visa holder indicates that her intention was to commence work in the nominated occupation after she gave birth, claiming that she and the sponsor came to an agreement regarding her employment commencement date. I acknowledge that the visa holder gave birth on 24 April 2019, and I note the employment termination letter provided with the NOICC response indicates the visa holder’s employer extended her commencement date by two months due to her pregnancy. However, despite the extension, the visa holder failed to commence work with her employer by the new date.

    The visa holder also alleged that she was advised in December 2018, before the grant of her subclass 457 visa, that the nominated position was no longer available, and she was asked to do “cleaning job” instead. She also claimed that the job offered was not genuine, and that she was requested to pay money “(AU$50,000 plus the numeration payable to HDN Services Australia Pty. Ltd) to start working with them”. However, these claims are not substantiated by any evidence and appear to contradict her claims that she had an agreement to commence her employment at a later date due to her pregnancy.

    On 05 August 2019, the sponsor informed the visa holder that her employment was terminated effective immediately because she did not start working within three months after the visa was granted that she failed to submit written notice for her maternity leave and that she failed to start work after the company gave her another two months because of her pregnancy.

    Departmental records indicate that there is no new nomination lodged on her behalf and she has not provided any statement of an intention to look for a new sponsor.

17. The applicant’s representative has submitted that:

    The applicant came to Australia to study. She graduated with a Bachelor of Information Technology with Credit at the University of Technology Sydney on 17 July 2013. She then applied for and was granted a Graduate visa (Subclass 485) on 10 January 2014.

    Prior to the expiration of Subclass 485, the applicant applied for a Subclass 457 visa under the business sponsorship of Sure Oceania Training Specialist Pty Ltd. However, due to a change in skilled occupation, this application failed. After this, the applicant found a new employer and was granted the Temporary Work (Skilled) (Subclass 457) visa (the subject of this cancellation review) on 01 March 2019 while she was onshore. This was for the purpose of undertaking employment in the nominated occupation – Developer Programmer (ANZSCO 261312) with the approved sponsor – HDN Services Australia Pty Ltd.

18. The Tribunal is satisfied that the circumstances around the offer of the job are subject to claim and counterclaim. However, the applicant has plainly (from the family aspect) a need to remain in Australia. She has actively pursued further employment despite the traumatic circumstances surrounding the birth of her latest child.

19. The Tribunal gives this consideration some favourable weight against cancelling the applicant’s visa.

    ·the extent of compliance with visa conditions

20. Apart from the issue in question there is no evidence the applicant has a history of non-compliance with visa conditions.

21. The Tribunal gives this consideration some favourable weight against cancelling her visa.

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

22. The applicant has a husband who works and a family of 4 sons spread from 20+ years old down to a child born in 2019. She had serious difficulties both before and after her last pregnancy - including post-natal depression. The Tribunal has had the benefit of an informative summary of her condition from her doctor. It is useful in that it fleshes out some of the issues she raised in oral evidence regarding the reasons for her (self-admitted) breach of condition 8107. The Tribunal gives the document significant favourable weight. These pregnancy issues were (she claims) ‘circumstances beyond her control’. They have (in the Tribunal’s opinion) manifestly contributed to the breach of condition 8107 and led, inexorably, to her visa cancellation. She has claimed to have suffered significant psychological hardship from her pregnancy and its aftermath.

23. Suffice to say having had to deal with a difficult pregnancy and the later post-natal depression the applicant was unable to work - according to her doctor. It appears that her employer may not have been sympathetic to her plight because she was refused employment when she sought to return to work with the nominator. She has tried continuously to get employment but despite her Australian IT degree she has met with a lack of success and despite being flexible in her job search. Her visa situation in all probability has contributed heavily to this problem. The Tribunal rejects any suggestion that she is unwilling to work because her academic history is not only a successful one but done as a mature age student and mother of young children.

24. It is the Tribunal’s finding that were the cancellation to be upheld the applicant’s family would be forced to return to the Philippines and this would create significant emotional and physical dislocation and attendant hardship for the family and serious financial hardship in the immediate sense.

25. The Tribunal gives this consideration maximum favourable weigh against cancelling her visa.

    ·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

26. The Tribunal is satisfied from both written and oral evidence that the circumstances in which the ground for cancellation arose were ‘beyond the applicant’s control’.

27. The Tribunal gives this consideration maximum favourable weigh against cancelling her visa.

    ·past and present behaviour of the visa holder towards the Department

28. The Tribunal has no adverse evidence about this consideration.

29. The Tribunal gives this consideration some favourable weigh against cancelling her visa.

    ·whether there would be consequential cancellations under s.140

30. The five other members of the applicant’s family would be the subject of consequential cancellations under s.140.

31. The Tribunal gives this consideration significant favourable weigh against cancelling her visa.

    ·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

32. If the visa were cancelled, the applicant and her family members will become unlawful non-citizens and may be liable for detention under section 189 and removal under section 198 of the Act - if they do not voluntarily depart Australia. The applicant and her family member would also be affected by section 48 of the Act, which would cause them to have limited options if applying for further visas while in Australia. However, the Tribunal notes that cancellation under these grounds does not cause the visa holder to be affected by the Public Interest Criterion 4013 risk factor. Therefore, she will not face an exclusion period as a result of this cancellation.

33. As such, the Tribunal gives this consideration some favourable weigh against cancelling her visa.

    ·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

34. As a signatory of the UN’s Convention on the Rights of the Child (CRC), Australia has an obligation to put the best interest of the child into consideration while making a decision related to the family unit. In relation to cancellation action, this does not preclude cancellation of a visa but requires the Tribunal to turn its mind to the consequences of cancellation, specifically whether a child will be separated from the family unit.

35. There is no information before the Tribunal to suggest that the visa cancellation will lead to a breach of Australia’s international obligations as the applicant’s children’s visas would be cancelled as a consequence of her visa cancellation and the family would, therefore, be required to depart Australia together. A decision as to where the family members reside, including the possibility of relocation, is a matter for the children’s parents to consider if required, following visa cancellation.

36. The applicant’s representative has opined that the applicant and her family who are dependents on her visa) would suffer significant hardship if their visas were cancelled and they had to depart Australia. The representative has addressed the issue of the children as follows:

    The applicant and her family have lived in Australia for more than 10 years and the applicant’s youngest son who was recently born in Australia (24 April 2019). They were well established in the Australian community and the holder’s children all commenced their education here upon their first arrival to the country. It would be emotionally difficult to the holder’s children to be removed from Australia, as her children have already built strong ties to the country. Most, if not all her children’s friends would be left behind. This will substantially affect the growth and emotional coping of the children especially since they have not lived in the Philippines for almost 10 years.

    Whilst the applicant accepts that Subclass 457 is a temporary visa and doesn’t not guarantee a permanent residency, this does not change the fact that the applicant, along with her husband and 4 children would struggle to re-establish themselves in the Philippines, and that they would be affected financially and emotionally if they had to leave, given the number of years they have lived in Australia. This would be a significant disruption to the family, given the hardship they will face of finding the need of a well- paying job to support all children including their newborn baby.

    This consequence would drastically affect her children’s education opportunities in the Philippines as this would be of a lower standard than of the Australian educational system. The applicant’s children have been enrolled to Australia’s educational system since their arrival to the country and any sudden change to this would be disruptive to them, especially as they have already adapted to the social environment of the country.

    If the holder’s visa would be cancelled, they would have to depart from Australia which would highly affect her children’s future education and career outlook.

1. The Tribunal is satisfied that, in the instant case, the interests of the applicant’s children are a primary consideration. The Tribunal finds that the children would suffer significant dislocation having lived for a considerable period in Australia.

2. The Tribunal gives this paramount consideration maximum favourable weigh against cancelling her visa.

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

3. Not applicable

   ·any other relevant matters

4. The representative has submitted the following information as further evidence supporting not cancelling the applicant’s visa:

   Whilst the applicant is actively looking for a new sponsor, alternatively the applicant intends to apply for a student visa should the Tribunal sets aside the visa cancellation. This will ensure that she and her family will remain compliant. She has recently secured a Letter of Offer from Universal Business School Sydney to study Master of Business Administration.

   The husband of the applicant has a trade qualification in Aged Care and has been working as a Support Worker in Achieve Australia Sydney since April 2018. Prior to this, he was employed (April 2018 to March 2019) at Opal Aged Care Service Pty Ltd for the same position. Australia’s aged care sector struggles to cope with ever- present workforce shortages, exacerbated by the COVID-19 forcing staff to self-isolate to protect vulnerable residents4. As of this writing, Achieve Australia alone (applicant’s husband current employer), is still trying to fill in support workers within the organization. Job vacancies were posted 22 days ago with multiple positions available located in Asquith, Beecroft and Hornsby. The same positions were posted 22 hours ago which only shows that they failed to recruit candidates for the available positions.

   By setting aside the cancellation, the children Dominic Matthew Perez, Grant Ian Perez and Tyrone Jei Perez will be allowed to apply for the student visas independently. This would have a highly positive impact to the applicant children’s future education and career outlook.

   Developer Programmer (ANZSCO 261312) is currently included in Medium and Long-term Strategic Skills List (MLTSSL). MLTSSL is the occupational demand list which is in high demand across various states and territories of Australia.

   The Department of Home Affairs recently identifies 17 occupations which fill critical skills needs that support Australia’s economic recovery from Covid-19 based on expert advice from the National Skills Commission and consultation with Commonwealth department. Developer Programmer (261312) is one of the included occupations (Priority Migration Skilled Occupation List, Attached)3.

   Although Australia is facing critical shortage of developers, the applicant is having hard time to find a new sponsor because of uncertainties on her visa status (Current Job Adverts in Developer Programmer occupation).

5. The Tribunal notes the representative’s claims regarding this consideration and gives it some further weight against cancelling the applicant’s visa.

6. Considering the circumstances, both individually and collectively, the Tribunal concludes that the visa should not be cancelled

   DECISION

7. 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.

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

   Michael Cooke
   Senior Member