Saipanya (Migration)

[2019] AATA 4537

Saipanya (Migration) [2019] AATA 4537 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tidachanok Saipanya

CASE NUMBER:  1915234

HOME AFFAIRS REFERENCE(S):           BCC2019/278601

MEMBER:John Cipolla

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2019 at 4:44pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant not working in her nominated occupation – approved occupation of Massage Therapist – applicant working as receptionist – termination of employer’s sponsorship agreement – family medical condition – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant became the subject of an approved nomination by their sponsor N S Oil Pty Ltd on 29 June 2016 and was subsequently granted a Subclass UC 457 (Temporary Work (Skilled)) visa on 29 September 2016. On 19 September 2018 and 22 November 2018 Australian Border Force (ABF) officers conducted unannounced site visits to the sponsor’s business address. During the first visit the applicant was found not to be on the premises; she was contacted by telephone, confirming that she was on her day off,  and that she was known as ‘Nok’ to colleagues, ‘Jasmine’ to clients and by no other names. During the second site visit it was determined by officers that the applicant had been instructed by the manager to lie and provide her working name as ‘Jasmine’, following which the applicant provided an additional working name ‘Coco’. The applicant indicated that they had stopped performing massage as they had gone on holiday, and following their return they were working as a receptionist due to a shoulder injury. Two staff members at a later stage confirmed that the applicant was known as ‘Nok’ and not by any other names, and that they had never seen the applicant perform massage and that she performed the role of receptionist. An examination of the massage log photographed at the time of the first site visit indicated that an employee named ‘Coco’ was listed as working whilst the applicant claimed to have been absent on holidays.

3. As a consequence of the site visit by ABF the applicant was served with a Notice of Intention to Consider Cancellation (NOICC) dated 16 May 2019. The NOICC stated that under s.116(1)(b) of the Migration Act that the applicant is required to comply with all conditions of their visa; including visa condition 8107(3)(a)(i) which requires that the applicant perform work in the nominated occupation, in this case Massage Therapist – (ANZSCO Code 411611). The Department based on the evidence collated at the site visits determined that the applicant was not engaged in the occupation of Massage Therapist and that the work that she was engaged in was that of Receptionist. The applicant was invited to comment on the above mentioned circumstances which would have formed grounds for the cancellation of her visa.

4. The applicant responded to the NOICC on 10 April 2019. In response the applicant stated that she believed that she had been performing the required work of Massage Therapist in a remedial massage business and that they had been doing nothing wrong. The applicant stated that she had been undertaking reception duties because she had a sore shoulder. The applicant stated she had a sick mother in Thailand receiving kidney dialysis and that she paid for the dialysis, and that she had financial responsibilities in Thailand and that the cancellation of her visa would therefore cause hardship for her entire family. Finally, the applicant apologised for having mislead the ABF in any way and requested that her visa not be cancelled, or at least she be given time to find a new sponsor.

5. In their decision dated 12 June 2019, the delegate found that the grounds for cancellation of the visa were made out, on the basis that the applicant had not complied with Section 116(1)(b) of the Act. In their assessment of the discretionary factors, the delegate attributed relatively limited weight in the applicant’s favour. Concerning the purpose of the applicant’s travel and stay in Australia, the delegate found that although the applicant was approved to work for the sponsor as a Massage Therapist, she performed a majority of her duties in a non-approved profession (Receptionist), and could not provide officers with evidence corroborating that she worked in the approved position. When considering whether the applicant had complied with the conditions of the visa, the delegate concluded that the applicant was not working in the nominated position and was unable to provide any information corroborating that this was the case. With regard to the hardship that could result from cancellation of the visa, the delegate determined that there would be some hardship to the applicant as a result of the cancellation; but that her visa was only ever temporary, and that the applicant already had sufficient time to locate a new sponsor following the termination of her sponsor’s SBS Agreement in January 2019. The delegate concluded that the cancellation decision may result in some hardship to the applicant’s family, owing to the applicant’s mother’s medical condition. With regard to consideration of the visa applicant’s past and present behaviour towards the Department, the delegate attributed little weight to this due to the applicant’s false and misleading statements to ABF officers during their site visits. With regard to whether other applicants would be affected by the cancellation the delegate found that no other applicant would be affected, and with regard to whether Australia would be in breach of any international obligations the delegate again found in the negative. Finally the delegate considered whether there were mandatory legal consequences for the applicant in the event of a cancellation; the delegate found in the affirmative determining that the applicant would become unlawful in Australia and would be affected by s.48 and prohibited for a period in applying for visas with the application of PIC 4013 criterion.

6. On 13 June 2019 the applicant applied for review of their visa cancellation with the Tribunal. To date no further evidence has been provided by the applicant to the Tribunal for consideration.

7. The Tribunal invited the applicant to a review hearing on 24 July 2019 at 2pm. The applicant failed to attend the scheduled hearing and no reason for the applicant’s non-attendance was provided to the Tribunal. The Tribunal is satisfied that the hearing invitation was sent to the correct address provided by the applicant for service of documents with regard to the review. The Tribunal is able to proceed to decision having regard to the evidence before it.

   FINDINGS AND REASONS

8. The Tribunal has had regard to the evidence provided on the Departmental and Tribunal files.  The Tribunal finds on the basis of the evidence before it, that the applicant did not work as a Massage Therapist and therefore has breached condition 8107.

9. 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

10. 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’.

    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

11. The applicant has been in Australia as the holder of Student visas since 2006. The applicant was granted a Subclass 457 (Temporary Work (Skilled)) visa on 29 September 2016.  The visa was granted on the basis of the applicant working for N S Oil Pty Ltd as a Massage Therapist.  The visa is a temporary visa and enables an Australian business to employ a person in an area where there is an identified skilled shortage and who establishes the need to employ an overseas applicant. 

12. The purpose of the applicant’s most current stay in Australia was to work as a Massage Therapist for N S Oil Pty Ltd.

    The extent of compliance with visa conditions

13. The evidence before the Tribunal indicates that the applicant has breached condition 8107 of her visa and it appears that she has done so since the grant of the visa in September 2016.

    The degree of hardship that may be caused

14. The Tribunal accepts that if the applicant’s visa remains cancelled that this will cause some hardship to the applicant and more directly to those family members in Thailand to whom she has been providing financial support from her earnings in Australia.

    Circumstances in which ground of cancellation arose.

15. The circumstances in which the ground for cancellation arose are outlined above in the excerpt from the Minister’s delegate’s decision. In short, the applicant was not working in her nominated occupation of Massage Therapist and it appears that she was working as a Receptionist instead.

16. The applicant has claimed that she did work in the position of Massage Therapist but at the time of the site visits she was working as a Receptionist because she had a sore shoulder.  This evidence has been negated by other employees who during the site visits confirmed that the applicant worked as a Receptionist and that they had not observed her working as a Massage Therapist.

    Past and present behaviour of the visa holder towards the department

17. There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department as to weigh against her in the exercise of the discretion.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

18. There are no other persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision

19. Had the applicant’s visa not been cancelled it would have already expired. Thus, even if she were successful before the Tribunal, she would not retain a Subclass 457 visa.

20. If the cancellation decision is affirmed, the applicant will hold a Bridging visa for a short period of time after which she will be required to depart Australia. If the applicant fails to depart Australia while she does not hold a visa she will be detained under s.189 of the Act and removed from Australia under s.198 of the Act as an unlawful non-citizen. If the applicant’s visa is cancelled she will be affected by s.48 and prohibited for a period in applying for visas with the application of PIC 4013 criterion.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

21. The applicant has not raised before the Department, or indeed before the Tribunal, that any of Australia’s international obligations would be breached as a result of the cancellation of her visa and the Tribunal finds that no breaches of Australia’s international obligations would arise from the cancellation her visa.

    CONCLUSION

22. On balance, the Tribunal is of the view that the visa should remain cancelled, despite hardship to the applicant and the other matters which weigh against affirming the decision to cancel the visa.  The visa was granted for a specific purpose. The 457 visa scheme was for businesses in Australia to be able to employ foreign workers for the purposes of fulfilling specific roles in circumstances where local businesses cannot find employees in Australia to fulfil those specific roles.  The visa exists to address skill shortages in Australia. The applicant was nominated to fill a specific role as a Massage Therapist and the evidence indicates that she and did not work in that role in breach of visa conditions.

23. The Tribunal does not consider there is any basis in this case which would provide a reason sufficient to exercise the discretion to set aside the delegate's decision. 

24. Considering the circumstances as a whole, the Tribunal has decided the visa should remain cancelled.

    DECISION

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

    John Cipolla
    Senior Member