Rilloraza (Migration)

[2019] AATA 3600

Rilloraza (Migration) [2019] AATA 3600 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Regina Leah Garcia Rilloraza
Mr Nestor Jr Flores
Mr Mikhael Angelo Flores

CASE NUMBER:  1906998

HOME AFFAIRS REFERENCE(S):           BCC2015/2266692 BCC2019/161174

MEMBER:Jennifer Cripps Watts

DATE:30 July 2019

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 30 July 2019 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – subclass 457 (Temporary Work (Skilled)) visa – Records Manager (ANZSCO 224214) – breach of condition 8107 – applicant ceased employment with sponsor – attempted to secure a new sponsor – approved new sponsor’s nomination – settled in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 348

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 21 March 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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 had not complied with a condition of the visa - 8107(3)(b) - which requires that if a 457 visa holder ceases employment (with their sponsor) the period during which they cease employment must not exceed 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.

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 applicant’s Subclass 457 visa was granted on 22 June 2016, for four years, working in the nominated occupation of Records Manager (ANZSCO 224214) for Future Academy Pty Ltd (the sponsor). 

5. The applicant’s visa was cancelled on 21 March 2019.  On 25 March 2019, she applied for review of the delegate’s decision and provided a copy of the decision to the Tribunal.

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

7. 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

8. 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, in this case, these include the ground set out in s.116(1)(b), that the applicant has not complied with a condition of the visa, specifically condition 8107(3)(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.

9. The applicant’s Subclass 457 visa that is the subject of this review was granted on the basis of an approved nomination by the sponsor in the nominated occupation of Records Manager (ANZSCO 224214).  The nomination was approved on 1 June 2016 and the applicant’s visa was granted on 22 June 2016 for four years.  It would naturally have ceased in 2020.  It is noted in the delegate’s decision that on 12 July 2018 the Department received notice in writing from the sponsor that the applicant ceased employment with them effective 15 June 2018.  Within 90 consecutive days of ceasing employment with the sponsor, the applicant did not return to work with the sponsor or an associated entity of the sponsor.  

10. Relating to the Subclass 457 visa, the applicant’s nominated occupation is Records Manager (ANZSCO 224214).  The applicant ceased employment with the sponsor on 15 June 2018.  Around late March 2019, the applicant applied for and was granted work rights.  She commenced work with an approved standard business sponsor, AEC Consulting Pty Ltd trading as The One International College (the new sponsor), and they lodged two nomination applications identifying the applicant in the same occupation that were refused, on 4 and 26 September 2018.   They applied a third time.

11. Evidence has been provided to the Tribunal that, on 28 May 2019, the nomination by the new sponsor, of the applicant (Subclass 482 visa), has now been approved.  The notice of decision includes the following information:

    a.Sponsor - AEC Consulting Pty Ltd

    i.Nomination TRN EGOM9WF4R5

    b.Nominee – Regina Leah Garcia Rilloraza

    i.Occupation/code – Records Manager/224214

    ii.Employment period – up to two years

    iii.Remuneration - $149,000

12. The 457 programme was discontinued in March 2018 and replaced by the Subclass 482 visa programme.  It is no longer possible to lodge an application for a 457 visa.  The approved nomination by the new sponsor will enable the applicant to lodge a Subclass 482 visa application onshore if she holds a substantive visa, or offshore if she doesn’t.

13. Notwithstanding that the applicant was required to secure a new nomination within 90 days of ceasing employment with the sponsor under the conditions of her Subclass 457 visa and was unsuccessful in doing so within that timeframe, the Tribunal is satisfied that she made genuine attempts to find a new sponsor, was successful in that she was offered a position by them and that new sponsor now has an approved nomination.   

14. At the Tribunal hearing, the applicant handed up a letter from the new sponsor in which they say, essentially, that the applicant is a highly valued and knowledgeable employee who enjoys good relationships with her co-workers and is considered to be a ‘great asset to the company’.  The letter, on The One International College letterhead (the trading name of the new sponsor) is dated 29 July 2019 and signed by Xin Yan, Director.

15. When all this information is considered, it indicates to the Tribunal quite strongly that the new sponsor is very keen to employ the applicant and that the applicant has remained, since mid-2018, committed to pursuing the nomination and working for the new sponsor (during the period she has held work rights) in the same occupation she was approved for with the sponsor.

    Does the ground for cancellation exist?

16. 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 case, the relevant condition is 8107(3)(b) which requires that the applicant continue to work for the sponsor and, if employment with the sponsor ceases, it must be for no more than 90 consecutive days.

17. The applicant ceased work for the sponsor effective 15 June 2018, relating to her Subclass 457 visa.  While the new sponsor that has ultimately had a nomination approved, it was not within 90 days of the applicant ceasing employment with the sponsor.

18. The applicant has provided the Tribunal with a notification of approval of a nomination issued by the Department of Home Affairs on its letterhead, including the details given above.

19. The Tribunal accepts that the applicant’s new sponsor now has an approved nomination identifying the applicant, as of 28 May 2019.  However, the two earlier nomination applications by the new sponsor were refused, in September 2018.  Notwithstanding that the third nomination application was approved, on 28 May 2019, the applicant ceased employment with the sponsor for substantially more than 90 consecutive days, from 15 June 2018.

20. At the hearing, the applicant was asked if she was disputing the ground for cancellation and confirmed that she was not disputing it.  

21. The Tribunal finds that the applicant did not comply with a condition of her visa: 8107(3)(b). Therefore the ground for cancellation, under s.116(1)(b) exists.

    Consideration of discretion

22. 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’.

23. The Tribunal has had regard to the relevant documentary and oral evidence provided on the review. 

    Background

24. The applicant, her husband and their son (who is in year 4) attended the Tribunal hearing and they all gave oral evidence.  The applicants are citizens of the Philippines.  The applicant moved to Australia with her family seven years ago holding a student visa, completed study here and was then granted the Subclass 457 visa that is the subject of this review, with her husband and son as dependant applicants.  They live in Kellyville, have settled in to the Australian community and attend the Marrickville Baptist Church. 

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

25. The purpose of the applicant's stay in Australia was to work for a sponsor in the nominated occupation (Records Manager) while she held a Subclass 457 visa.  She was nominated by, and worked for, the sponsor for around two of the four years of the visa period, up until 15 June 2018, when she ceased employment with them.  After being granted work rights in around March 2019, the applicant recommenced working as a Records Manager and has continued to work in the nominated occupation for the new sponsor since then. The applicant has not remained in Australia wholly in accordance with the original purpose of his visa. 

26. However, the new sponsor has had a nomination approved and the applicant is now working for the new sponsor and is intending to continue to work there as a Records Manager and has indicated that she intends to lodge a Subclass 482 visa application relating to the new sponsor’s nomination approved on 28 May 2019.  The Tribunal is satisfied that there are no conditions attached to the nomination that would prevent the applicant from applying for the visa on the basis of the approved nomination, provided she does so within the relevant timeframe, with reference to the ‘Period of approval’ stated in the ‘Nomination Approval Notice For Subclass 482 Visa’ at Tribunal folio 30.

    Extent of compliance with visa conditions

27. It is not in dispute that the applicant was non-compliant with condition 8107(3)(b).  There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions in the seven years she has resided in Australia.

    Degree of financial, psychological, emotional or other hardship that may be caused

28. Significant weight is given by the Tribunal to the applicant having made dedicated attempts to secure a new sponsor and having now been successful.  The new sponsor’s nomination was approved on 28 May 2019 and the Tribunal has considered their support for the applicant, given in writing in their letter dated 29 July 2019.  It appears not to be in doubt that the new sponsor and applicant intend to work towards finalising a positive 482 visa outcome for her.

29. The applicant and her family live in Kellyville and pay $600 a week rent.  Their son attends the local public school and has lived in Australia for most of his life.  The applicant is from a far northern region of the Philippines and it is the Tribunal’s view, in the circumstances, that applicant would have limited career options open to her back in the Philippines in the occupation of Records Manager and there can be no utility, given that she is employed in that occupation now with a standard business sponsor who has an approved nomination for her, in finding that the breach of condition 8107(3)(b) outweighs her current circumstances relating to her sponsorship and employment. 

30. It is the Tribunal’s view, in this applicant’s circumstances, that cancellation of her visa would cause unnecessary hardship to her and her family.

    Circumstances in which the cancellation arose

31. The applicant gave oral evidence that she notified the sponsor that she wished to terminate her employment, it would seem at least partly, on the basis that she was of the opinion that they were not complying with certain obligations and/or standards and she was uncomfortable with that.  Without making findings about whether the sponsor was not complying with certain obligations, the Tribunal can understand why someone holding a Subclass 457 visa, aware that her conditions must be complied with, would be concerned about possible non-compliance by her sponsor. 

    Past and present behaviour towards the Department

32. There is no information before the Tribunal to indicate that the applicant has been unco-operative with the Department.

    Whether there would be consequential cancellations under s.140

33. The applicant has a husband and son who are her dependants relating to the Subclass 457 visa that is the subject of this review. If the applicant's visa is cancelled, the visas of her husband and son will also be cancelled under s.140 of the Act. The Tribunal is satisfied that if the visas are cancelled, there is no reason to think the family unit would be separated as a direct result of the cancellation.

    Mandatory legal consequences

34. If the applicant’s visa is cancelled, she will become an unlawful non-citizen and, if she does not depart voluntarily, may be detained under s.189 of the Act. Under s.48 of the Act, the applicant would be unable to lodge another visa application, with some limited exceptions.

35. If the decision to cancel her visa is set aside, she will have a specified timeframe where she will again, for a short period, hold a substantive visa.  During this time, the applicant will have the opportunity to apply for the visa relating to the new sponsor’s approved nomination.

    International obligations, including non-refoulement and best interests of children

36. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

37. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

38. The applicant has made no claim against non-refoulement obligations.

39. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

40. Considering the circumstances as a whole, the Tribunal concludes that the visa should not  be cancelled

    DECISION

41. 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.

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

    Jennifer Cripps Watts
    Member