Ramil (Migration)

[2017] AATA 630

Ramil (Migration) [2017] AATA 630 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Melvin Celeste Ramil

CASE NUMBER:  1618225

DIBP REFERENCE(S):  BCC2016/2940699

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  26 April 2017

DATE OF WRITTEN STATEMENT:       26 April 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2017 at 2:34pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Condition 8107 – Applicant ceased sponsored employment over 90 days – Unfair dismissal and compensation claims – New employer without sponsorship nomination – Family hardship – Visa duration completed

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b)

Migration Regulation 1994, Schedule 2, r 2.12

CASES

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168
Visnumolakala 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 Affairs2006] FCA 1767 Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 2016 made by a delegate of the Minister for Immigration 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 first named applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 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 24 October 2016 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 13 November 2012, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 13 November 2016;

   ·The standard business sponsor who nominated the applicant to work as a metal machinist was Australian Steel Pty Ltd;

   ·On 30 September 2015 the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 28 September 2016;

   ·On 1^st; 17^th and 19^th October 2016, the applicant responded in writing to NOICC. He did not dispute that the ground for cancellation is made up. He stated that he was unfairly dismissed from employment; that he sought compensation from his former employer through Fair Work Ombudsman and that he continues to search for new employment;

   ·On 24 October 2016, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the tribunal on 2 November 2016 for review of the visa cancellation and with his application submitted:

   ·A copy of the primary decision record;

   ·Applicant’s Statutory Declaration dated 1 November 2016;

   ·Applicant’s Statutory Declaration dated18 October 2016; and

   ·Applicant’s Statement 29 December 2015.

5. On 2 March 2017, 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 hearing scheduled for 26 April 2017.

6. The applicant appeared before the Tribunal on 26 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

7. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the tribunal hearing. The tribunal informed the applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceeded 90 consecutive days.

8. The tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. This is the summary of the applicant’s oral evidence:

   The applicant is 40 years of age married national of Philippines. He has no children and his wife, six siblings and mother live at Philippines. Prior to arriving in Australia in December 2012 as a holder of a subclass 457 visa, Mr Ramil was working as a metal machinist for approximately 10 years. He completed a Diploma level of education relevant to his occupation in 2002. His wife completed a Degree in Computer Science and is employed as an office worker at JP Morgan since 2002. She lives and works in Manila. Together Mr Ramil and his wife are in the process of purchasing a house at Philippines.

   In his evidence the applicant confirmed that he was granted a subclass 457 visa on 13 November 2012 based on the sponsorship and nomination made by Australian Steel Pty Ltd and that this visa was, but for the cancellation, valid until 13 November 2016. He gave evidence that he received the visa grant letter from the department and that he read and understood the conditions imposed on his visa.

   He stated that he ceased employment at the sponsoring business on 30 September 2015 and that he does not dispute that the ground for the visa cancellation was made up as the period during which he ceased employment exceed 90 consecutive days. He reiterated statements contained in his Statutory Declaration of 1 November 2016 submitted with his review application to this tribunal.

   I inquired what he was doing in Australia after he ceased working for his sponsoring employer. Mr Ramil stated that in October 2015 he commenced employment as a machine operator for an Australian business named ‘Roma’. This business never sponsored or nominated the applicant for the employment within the organisation. I noted that one of the conditions imposed on his subclass 457 visa was that he must work only in a position in the business of the sponsor or an associated entity of the sponsor. The applicant stated that he knew that he could only work for his sponsoring employer.  I explained that, by working for the business that was not his sponsoring employer, he breached the condition 8107 (3)(a)(ii)(B). Mr Ramil confirmed that he understood that. He gave evidence that he ceased employment at Roma as soon as his 457 visa was cancelled in October 2016.

   The applicant stated that on 30 March 2017, the department removed ‘no work’ condition that was imposed on his bridging visa ‘E’ granted after the subclass 457 visa was cancelled and that he resumed his employment at Roma immediately after.

10. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition 8107 that was imposed on his subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submission provided in support of the application. I asked the applicant if there is anything else that he wants to raise with the tribunal.

12. The applicant stated that if his visa remains cancelled, his family will suffer financial hardship as he is the only ‘bread winner’; that he is providing financial support to his mother who is not well; his siblings at Philippines and his wife. He stated that he wants to purchase a house at Philippines and that was the reason why he came to Australia to work.

13. 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

14. 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?

15. 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 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

16. In this instance condition 8107 was attached to the applicant's visa, which was granted on 13 November 2012, and which, but for its cancellation, was valid to 13 November 2016.

17. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that the applicant ceased employment with Australian Steel Pty Ltd on 30 September 2015. The tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the tribunal finds that the review applicant did not comply with condition 8107(3)(b).

18. 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

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

20. 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) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala 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 Affairs2006] 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]

21. 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

22. 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.

23. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a metal machinist on a temporary basis. The applicant was unfortunate to lose his job in September 2015. The applicant decided to remain in Australia and try to find a new employer.  He was unable to do so before his visa was cancelled by the department on 24 October 2016.

24. I accept that the applicant attempted to find another sponsoring employer. However, as of the day of my decision the applicant is not employed or has found an Australian company who is an approved standard business sponsor who successfully nominated the applicant for a position within the business. Based on the evidence before me, I find that the applicant’s visa, but for the cancellation, would ceased on 13 November 2016 in any case.

25. As explained at the hearing, the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. The purpose 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 working for his sponsor on 30 September 2015 and he has not found a new sponsor at the time of decision.  I give significant weight to this consideration.

    The reason for and extent of the breach

26. The applicant conceded in his evidence that he received the visa grant letter from the Department containing explanation of the conditions imposed on 457 visa. According to his oral evidence, he was aware of the condition 8107 being imposed on his visa. The tribunal is satisfied on the evidence before it that the review applicant was aware of the conditions imposed on his 457 visa.

27. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 30 September 2015. I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach, however, by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, as of the day of my decision, the applicant had already ceased employment for more than 18 months. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after 18 months since the original cessation of employment represents a significant breach of condition 8107.

28. The applicant gave evidence that he was employed by an Australian business named Roma from October 2015 until his visa was cancelled in October 2016 despite being aware that he was not allowed to do so by the conditions imposed on his visa. This business never sponsored or nominated the applicant for the employment within the organisation. Based on the applicant’s oral evidence I am satisfied that the applicant breached the condition 8107 (3)(a)(ii)(B) by working at the business which was not his sponsor or associated entity of his sponsor.

29. Based on the evidence before me, I am satisfied that the review applicant breached condition 8107 on multiple occasions and I give significant weight to this finding.

    Circumstances in which ground of cancellation arose.

30. Mr Ramil lost his job at Australian Steel Pty Ltd on 30 September 2015. Despite of not being able to recommence employment for more than 12 months, the department did not proceed with the visa cancellation until 24 October 2016. I am satisfied on the evidence before me that the department afforded the applicant sufficient time to secure the employment in Australia with alternative business sponsor.

31. 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

32. There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

33. The applicant claims that the visa cancellation would cause financial hardship to himself and his family as he is the only ‘bread winner’. He gave evidence that he provides financial support to his mother, siblings and wife. He stated that he wants to purchase a house at Philippines and that was the reason why he came to Australia to work.

34. I have taken into consideration the applicant’s evidence that all of his relatives are residing at Philippines; that both he and his wife completed education at Philippines and have over 10 years of work experience.

35. I accept that leaving Australia may involve some hardship to the applicant and his family, but I am of the view that this hardship would be significant. I do not accept that the applicant would not be able to re-establish himself in the Philippines, given his employment background and experience.   

36. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which create no expectation of remaining in Australia permanently.

37. The 457 visa would have ceased on 13 November 2016 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. 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.

    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

38. 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 her to remain in Australia. If that is the case she and her family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

39. The tribunal is mindful that Section 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 section 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

40. The tribunal finds that 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

41. 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).  

1. There is little in the 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

2. There is no evidence before the tribunal regarding this matter.

3. 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

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

   Antonio Dronjic
   Member