Pontillas (Migration)
[2020] AATA 4214
•9 October 2020
Pontillas (Migration) [2020] AATA 4214 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Roel Ababa Pontillas
Mr Josh Lenuel Barola Pontillas
Mr Hans Jabes Barola PontillasCASE NUMBER: 2002543
HOME AFFAIRS REFERENCE(S): BCC2019/3622725
MEMBER:Michael Cooke
DATE:9 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 09 October 2020 at 2:30pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – approved annual leave and travel to home country – passport not reissued in time to return – employment terminated – attempts to find new sponsor – goal of permanent residency – age restrictions – wife’s major surgery and family’s dependency – no jurisdiction for secondary applicants – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107CASES
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 31 January 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that he breached condition 8107 he ceased employment more than the stipulated 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.
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.
The primary applicant appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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
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
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 attached to the applicant’s visa. This condition requires that if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days.
Particulars of the ground for cancellation
There appears to be a ground for cancellation of the applicant’s visa under section 116(1)(b) of the Act as it appears he has not complied with subclause (3)(b) of condition 8107 attached to his visa. The condition states (in part):
Condition 8107(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):
(b) if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days;
The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was HEALTHY NUT CAFE PTY. LTD ('the sponsor'), whose nomination was approved on 5 July 2018. The sponsor advised the Department that the applicant ceased employment with them effective from at least 16 July 2019.
This indicates that the applicant had not complied with condition 8107(3)(b) because the period during which he ceased employment had exceeded 60 consecutive days.
The evidence before the Tribunal and not contradicted by the applicant is that he breached this condition of their visa. However, this breach was largely ‘beyond his control’ as he had attempted to secure a new nomination within the 60 day window.
Through his representative’s submissions and additional information, he has elaborated on why the breach occurred.
Based on the information before the Tribunal, it satisfied the applicant has not complied with his visa condition 8107 by having ceased employment with his last approved sponsor for a period exceeding 60 days.
Consideration of discretion / conclusions
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
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
The applicant came to Australia for employment.
·the extent of compliance with visa conditions
Apart from the non-compliance in question there is no evidence that the applicant has otherwise been non-compliant with visa conditions.
The Tribunal gives this consideration significant favourable weight against cancellation.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant will suffer major hardship if his visa cancellation is affirmed. He has stated in oral evidence that he has a wife and children in the Philippines who depend on him to maintain their household. His wife has also had major surgery involving a kidney replacement.
The Tribunal gives this consideration maximum favourable weight against cancellation.
·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
The applicant lost his employment as a result of an issue that arose with his employer. The circumstances which led to the grounds for cancellation arising were the applicant’s cessation of employment with the sponsor on 16 July 2019 and his not having a new nomination approved in relation to an alternative sponsor, within 60 consecutive days.
The applicant’s representative (Ms Lauren Slack) has summarised his history as follows:
In June 2019 Mr Pontillas took approved annual leave from his employers at this time, Healthy Nut Café Pty Ltd ('Healthy Nut'). He travelled to the Philippines where is family (wife and two children) live. During this time, he also sought to have his passport re-issued. The passport had not been reissued at the time he was due to return to Australia and resume work. Upon realisation of this, and via a flurry of text messages, Mr Pontillas' employment was terminated on the basis that he was now considered to be absent without leave ('AWOL').
Mr Pontillas concedes his conduct towards his employers in the lead up to and during this trip (and his ultimate termination) was less than ideal. He had wanted to make Australia his permanent home. Healthy Nut both directly and via their migration agent (Domenic Calabro) provided advice that while Healthy Nut were willing to put in an application for a Permanent Visa for Mr Pontillas and his family, that he still needed to work for another year in order to meet the legislative criteria. Mr Pontillas states that this advice ("you just need to work for another year") had been provided to him consistently for at least the preceding 12 months. He says he felt (perhaps somewhat justifiably) that his dream of obtaining permanent residency in Australia was slipping further and further away.
Mr Pontillas is now 51 years of age. There are various pieces of legislation that allow an application for permanent residency for certain UC 457 visa holders who are between 45 - 49 years of age (inclusive) if they have the support of their employer. However, there are really no viable options for someone with Mr Pontillas' skills once he turned 50, irrespective of employer support. Mr Pontillas' trip to the Philippines coincided with recent, further advice that he needed to work "for another year" before the Healthy Nut would consider him for a permanent visa; this period of time would have taken him beyond 50 years of age.
Mr Pontillas advises that his attitude at work and his motivation dipped considerably around this time at the realisation that he was never going to be a permanent resident in Australia. His relationships at work had deteriorated and he said he felt belittled there.
In the meantime, he had also been offered employment with Searange Holdings Pty Ltd T/A the Freemasons Hotel Geraldton who had agreed to submit a formal GK482 Nomination on his behalf.
The Tribunal observes that on 27 August 2020, the Office of the Migration Agents Registration Authority cancelled the registration of the migration agent, Mr Domenico CALABRO (MARN 1279265).
In the applicant’s response to the NOICC he did not provide any substantive information relevant to consideration of the cancellation but only the information suggested by his then representative – which was evidence of a new nominator.
The applicant was made aware at the time of grant of the Subclass 457 visa of the conditions imposed upon the visa and the requirement to abide by these conditions during the prescribed period of stay in Australia. The delegate noted in his decision that there is no indication in Departmental records that the applicant proactively contacted the Department to discuss the change in his employment status at the time his employment ceased, or at any stage after this change had occurred. The applicant’s representative has addressed this issue and has suggested that the applicant was not in control of the process as it was being conducted between 5 June 2019 and 10 January by another agent employed by ‘Searange’ who was facilitating a new nomination with the Department within the 60 day stipulation.
The Tribunal notes the applicant’s actions in seeking another Subclass 457 sponsor to employ him does demonstrate that he had some understanding of the obligations towards condition 8107. The explanation as to why the applicant applied for a position with SEARANGE HOLDINGS PTY LTD to sponsor him for the Subclass 457 visa, is that he became aware that he needed a new employer and thus a new sponsor and sponsoring arrangement for the purpose of maintaining a valid Subclass 457 visa..
The applicant’s attempt at engaging a new sponsor have not been successful up till now principally due to a snafu in submitted nomination paperwork by this new sponsor in an earlier application. This is explained by his representative as follows:
We have been provided with the confirmation of lodgement of the GK 482 nomination however we have not had access to the reasons given by the Department of Home Affairs ('Department') for its refusal. When the writer spoke with Kristina from ‘Searange’ directly (Friday 18 September 2020) she verbally advised the reason for refusal. Specifically, Kristina advised the refusal was due to a signed employment contract of a template nature being submitted with the application which meant the employment contract was dated January 2019, instead of January 2020.
On that basis, the Department took the view that the Labour Market Testing requirements had not been complied with.
Please note, we have not been able to verify this information as the refusal notification has not been provided to us and we appreciate the limitations of the above in being of assistance at the hearing.
The Tribunal finds that the applicant’s cessation of employment and inability to be successfully renominated with a new sponsor within 60 days was largely due to ‘circumstances beyond his control’. He is now seeking a further nomination. His Subclass 457 grant officially lapses on 20 October 2020.
The Tribunal gives this consideration significant favourable weight against cancellation.
·past and present behaviour of the visa holder towards the Department
The applicant has no adverse history with the Department other than the present breach. He has lived in Australia (apart from an 18-month period in 2012-13) since 2008.
The Tribunal gives this consideration significant favourable weight against cancellation.
·whether there would be consequential cancellations under s.140
The applicant’s sons live with their mother in the Philippines. The other applicants’ visas were automatically cancelled as a consequence of their father’s cancellation.
The Tribunal gives this consideration some favourable weight against cancellation despite their contemporary overseas residence.
·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
The applicant (in the event of the cancellation being affirmed) would be subject to section 48 of the Migration Act which may prevent him from applying for certain visas while in Australia. If his visa were cancelled, his dependants would also be consequentially cancelled by operation of law. The applicant may not be permitted to work in Australia following a visa cancellation and may be held in immigration detention until his removal from Australia.
The applicant (in the event of affirmation of the cancellation) would become an unlawful non-citizen and may be detained under section 189 and removed from Australia under section 198 of the Act if he did not resolve his immigration status or voluntarily depart Australia as he would no longer hold a valid visa. As he is a citizen of the Philippines and holds a passport for that country, it would be open to him to return to that country to mitigate the possibility of being placed in immigration detention. The Tribunal does not consider that he would potentially face indefinite detention.
Cancellation of the visa under these grounds will not incur any penalty to him under Public Interest Criterion 4013, which prevents the applicant from applying from overseas for a new visa once he has established his eligibility for one.
The Tribunal gives this consideration significant favourable weight against cancellation.
·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
The policy guidelines require an assessment as to 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 (CROC), and the International Covenant on Civil and Political Rights (ICCPR).
According to Departmental records the secondary applicants reside in the Philippines, so the visa applicant does not have a parental or other close relationship with a child who is now in Australia and under 18 years of age.
The applicant is a citizen of Philippines and has had not applied for Protection or indicated he would face harm if he returned to his home country.
There is no information that Australia would be in breach of its international obligations to the applicant, including the above international agreements, if his Subclass 457 visa were cancelled. The Tribunal finds that the circumstances of this case are not such that they would engage Australia's international obligations.
Therefore, the Tribunal gives this consideration favourable weight against cancellation.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
·any other relevant matters
The applicant has addressed the Tribunal and given it a complete outline of his present situation via a comprehensive submission that has addressed his visa history and family situation. The Tribunal has thus had an ability to consider his situation de novo and all the elements of it. In particular, the applicant appears to have been a victim of bad advice and ‘circumstances beyond his control’.
Having considered the circumstances as a whole and individually, the Tribunal concludes that the visa should not be cancelled
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.
Michael Cooke
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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