Sasmitawardoyo (Migration)

[2020] AATA 4388

Sasmitawardoyo (Migration) [2020] AATA 4388 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Purwadi Sasmitawardoyo

CASE NUMBER:  2004283

HOME AFFAIRS REFERENCE(S):          BCC2019/3107559

MEMBER:Mr S Norman

DATE:19 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 19 October 2020 at 10:55am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – harassment and bullying from new managers – attempts to find new sponsor – effect of COVID-19 restrictions on relevant opportunities – wife’s application for different visa subclass – wife’s employer not proceeding with review of refusal of nomination – children’s education and family’s close personal ties and economic connections – country information about economic effect of COVID-19 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 28 February 2020 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). The Department decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) 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. The applicant (Mr Purwadi Sasmitawardoyo) appeared before the Tribunal on 13 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lulu ASRIONI (the applicant’s wife). The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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) of the Act. 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?

6. 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)(b) attached to the applicant’s visa.

7. On 23 April 2018, the applicant had been granted a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa (the Subclass 457 visa) (nominated occupation – Cook – ANZSCO: 351411). The associated sponsor was PATRICK ARTHUR WHEELER ATF THE WHEELER FAMILY TRUST (the nomination was approved on 23 April 2018 – the business name was Oasis Motel Hotel[1]).

   [1] PDF – p.76 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).

8. By email of 3 December 2018, the (now former) sponsor notified the Department that the applicant had ceased work with them from 6 November 2018. By Notice of Intention to Consider Cancellation (NOICC) of the Subclass 457 visa dated 4 February 2020, the applicant was advised that consideration was being given to cancelling his Subclass 457 visa, under s.116(1)(b) of the Act. That was because it appeared he had not complied with condition 8107 (3) (b) which had been attached to his visa. That stated:

   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

9. In their decision, the delegate recorded the applicant responded to the NOICC on 19 February 2020 (also see migration agent letter of 17 February 2020 & applicant response dated 18 February 2020). The applicant claimed the grounds for cancellation were outside his control as the termination of his employment was due to harassment and bullying in the workplace (from the new management team – and this also led to his and his spouse’s termination from the Oasis Motel/Hotel).

10. When discussed at hearing, the applicant said he made no formal complaint about the harassment or bullying, but he did tell his ‘boss’. However, his boss needed the new management team to operate the restaurant and the matter was not pursued. No other material complaint was made.

11. The delegate also noted that Department records indicated the applicant had no further nomination or sponsorship agreement in place with any other employer (at the time of the delegate’s decision).

12. At the Tribunal hearing, the applicant did not dispute he had breached condition 8107(3)(b). Based on the evidence before it, the Tribunal is thus satisfied the applicant breached 8107(3)(b) as he had ceased employment with his last approved sponsor for a period exceeding 60 days.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s116(1)(b) of the Act, 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

14. 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’.

15. The purpose of the applicant’s stay in Australia, was due to being granted a Subclass 457 visa on 23 April 2018 and in order to work in Australia in a skilled occupation which could not be filled from within the Australian workforce (visa expiry date 23 April 2022).

16. Prior to being granted the Subclass 457 visa, the applicant held three Student (Subclass 572) visas for the purpose of studying Vocational Education in Australia and one Temporary Skilled (Subclass 457) visa, due to being employed as a Cafe or Restaurant Manager at WARUPI TRUST and later as a Cook at TENNANT CREEK MEMORIAL CLUB INC.  

17. That said, the Department was notified on 3 December 2018 the applicant had ceased employment with the last approved sponsor, effective 6 November 2018. The purpose for which the visa was granted to the applicant then had ceased on 5 January 2019; being 60 consecutive days after he had finished employment with his most recent former sponsor.

18. The applicant had claimed that he and his wife had ‘diligently sought employment with a new sponsor during his period of unemployment’. By statement emailed 8 October 2020, the applicant had also said his termination was unexpected; and over the following 15 months he and his wife had consistently attempted (unsuccessfully) to find a new sponsor. The applicant had also indicated that on 19 October 2019 the Cairns Colonial Cub Resort engaged his wife in full employment; the employer agreed to sponsor the wife under the DAMA Labour Agreement; and documents were to be lodged on 30 January 2020. However, when discussed at hearing the applicant said his wife had withdrawn from this process as they feared it may take too long.

19. Notwithstanding the late efforts of the wife to obtain a Subclass 482 visa, the Tribunal accepts this was an attempt to rectify the non-compliance. It was also said the cancellation of the applicant’s visa would prevent the spouse from being granted a visa.[2] However, the wife’s efforts apparently only occurred some 15 months after the applicant ceased employment with his former sponsor and after receiving the NOICC. 

    [2] PDF – p.77.

20. Further, the Tribunal also notes that prior to COVID-19 there were reports of a shortage of cooks and chefs in Queensland,[3] but the applicant was none-the-less allegedly unable to find a new sponsor.

    [3] See Skill Shortages, Department of Education, Skills and Employment, 13 March 2019 , accessed 13 October 2020; and Report on Queensland's Chef shortage, Queensland Tourism Industry Council, ‘3 years ago’, , accessed 13 October 2020.

21. That being said, the NOICC was only issued on 4 February 2020 (around 14 months after the applicant had ceased employment with his former sponsor). It was only ten days after the NOICC was issued, the applicant’s wife lodged a Temporary Skilled Work (subclass 482) visa application (listing the applicant as a dependent). The associated nomination application had then been refused on 28 February 2020.

22. Given the applicant had sought to be listed as a dependent on his wife’s more recent (and unsuccessful) Subclass 482 visa application, and given the applicant did not have any nomination applications before the Department, the Tribunal is satisfied the purpose for which the applicant was granted the Subclass 457 visa had now ceased. Be that as it may, and as it was raised at the hearing, the Tribunal does accept the applicant and his wife continue to wish to reside in Australia.

23. Next, and regarding the extent of compliance with visa conditions, in his response to the NOICC the applicant said he and his family had committed no other breach of any visa condition (other than having breached condition 8107(3)(b)). The delegate said the Subclass 457 visa regime would provide an applicant a specified period after ceasing employment to find another sponsor and commence working for them, and to then subsequently be granted another visa. In the alternative, the applicant was required to depart Australia.

24. Given the period during which the applicant had ceased employment was over 14 months at the time of the delegate’s decision (far in excess of the 60 consecutive day period allowed by condition 8107(3)(b)), the Tribunal is satisfied the applicant had a substantial period of time within which to remedy his circumstances, or depart Australia.

25. Next, and regarding the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant’s visa is cancelled, in his response to the NOICC the applicant said:

    ·His spouse had been working part time with her employer since November 2018, and was offered a full time position in January 2020. Her sponsoring business would suffer if his visa was cancelled, due to financial implications and the difficulty they would encounter in finding another candidate to fill her position

    ·The applicant and his family were based in regional Australia where it was hard to find appropriate employees with relevant skillsets to be able to produce work of high quality. Their commitment to living and working in regional Australia, benefiting the local community and made a valuable contribution to the economy

26. As noted above, the Tribunal understood that at least prior to the COVID-19 pandemic, there was a shortage of cooks/chefs in Queensland. As noted at hearing, since the COVID-19 pandemic, the Queensland (and Australian) economy had been adversely impacted (though efforts were ongoing to remedy the situation[4]), there were large numbers of unemployed in Queensland[5] (though some improvements in employment were noted more recently[6]), and particularly hardly hit were the Queensland tourism/hospitality industries (where the applicant and his wife had worked). And the identification of venues with confirmed COVID-19 cases appears to be ongoing, if not expanding in Queensland.[7] Further, as at the date of the Tribunal hearing, and with respect to domestic travel:

    Queensland border closure:

    To slow the spread of the coronavirus (COVID-19), the Queensland Government has restricted entry into Queensland. Read more about entry requirements, exemptions and passes.

    [4] COVID-19 Fiscal and Economic Review, Queensland Government, 7 September 2020, , accessed 13 October 2020.

    [5] Calls for JobSeeker payments to be extended beyond September as charities prepare for surge in demand, ABC News, 13 July 2020, , accessed 13 October 2020; COVID claims further 28,000 jobs as Qld hits 18-year unemployment high, Brisbane Times, 18 June 2020, accessed 13 October 2020;

    [6] Labour Force, Australia, Australian Bureau of Statistics, , accessed 13 October 2020.

    [7] Public Health Alert, 2 September 2020, Queensland Health, , accessed 13 October 2020.

27. Accordingly, it is not known when the tourism industry will recover in Queensland.

28. At hearing, the applicant wife said that her sponsor decided not to seek review of the associated nomination application to her Subclass 482 visa, due to them having to close down (at least part of) the business due to COVID-19. The Tribunal is therefore not satisfied that any hardship would arise from the cancellation of the applicant’s visa, for the business who had previously sought to sponsor the wife (as was suggested).

29. In writing, the applicant had referred to his spouse’s full time employment at the Cairns Colonial Club Resort as a ‘comms chef’. It was said a position was offered to his spouse in January 2020, though she had been employed part time with that employer since November 2018

30. At hearing, and regarding employment in Queensland, the applicant said that both he and his wife had recently been called to work - the Tribunal understands by an unnamed employer. They said they were called as they did not need to be trained – though they were only called in to work on a part time basis. The Tribunal said that it was, and continues to be, concerned this meant they were taking positions that may have otherwise been engaged in by Australian citizens or permanent residents who continue to be unemployed.

31. In response to the NOICC, and with respect to the applicant’s family:

    ·The applicant’s four children would suffer hardship as they were undergoing education in Australia which would be disrupted if his visa was cancelled. The applicant said his two youngest children were enrolled in secondary school, with one commencing year 11 in 2020

    ·The applicant said his two elder children were engaged in Vocational Education, and were due to complete Diplomas in February 2021 (one in Travel and Tourism Management - due to be completed in February 2021; and the other in Leadership and Management – due to be completed in February 2020[8]). It was also explained that one child (Kemal – now studying Leadership and Management) had already completed a Certificate III in Individual Support

    [8] PDF – p.78.

32. The Tribunal understands the applicant and his family have resided in Australia since 2009. It was therefore likely the applicant and his family had formed close personal connections and economic ties to Australia during that time (though there is no expectation from the Department of long-term residence in Australia, given the applicant has only held temporary visas).

33. The delegate accepted the applicant’s children would be adversely impacted by the cancellation of the applicant’s visa; given they were all studying in Australia. However, the delegate presumed the children could complete their education on return to their home country (Indonesia); and with respect to the two older children, they may lodge visa applications of their own to continue their studies in Australia.

34. When discussed at hearing, the Tribunal noted that education is available in Indonesia. For instance, the country information considered stated:[9]

    [9] DFAT Country Information Report Indonesia, 25 January 2019.

35. Be that as it may, and given that most if not all of the applicant’s four children secondary/tertiary education, has been conducted in Australia, the Tribunal accepts they would have difficulty returning to Indonesia, and re-engaging in the education that is available to them.

36. As stated at hearing, the Tribunal also understood the applicant’s two elder children may be able to lodge Student visa applications to continue to study/reside in Australia. The applicant said that as they were financially dependent on him, he did not believe this was likely. However, the applicant and his wife are now working part time and apparently able to support their two elder children’s education in Australia. The Tribunal presumes it may be they could continue to do so if they (the applicant, his wife and two younger children) returned to Indonesia and found work.

37. Regarding working in Indonesia, the now 50 year old applicant had worked as a salesman in Indonesia, had studied in Australia, had worked in hospitality in Australia, and the Tribunal presumed he (and his wife who also worked in hospitality) could find work commensurate with his skills in Indonesia. Regarding the Indonesia economy, the country information stated:

38. When then discussed at hearing, the applicant thought that at 50 years of age, and with the added economic impact of COVID-19, he may not be able to find work in Indonesia. The Tribunal accepts the Indonesia economy, as is the Australian economy, was adversely impacted by the COVID-19 pandemic. The country information stated:

    … Indonesian GDP fell by 5.3 per cent in the April-June quarter, according to Statistics Indonesia. The World Bank expects it to shrink by at least another 1.6 per cent before the year is out  …..

    The coronavirus pandemic has also battered the world's 16th-largest economy, and it is hoped the laws will cut red tape to spur a quick recovery..[10]

    [10] Indonesia erupts in protests for third day over controversial labour laws, October 2020, ABC News, , accessed 13 October 2020.

39. Regarding, age discrimination for men in Indonesia, the country information stated:

    Labor Law of 2003 prohibits discrimination for job seekers. However, the explanation of the legislation states that the discriminations are only limited to religion, gender, ethnicity, race, and political beliefs. In reality, almost all job vacancies in Indonesia specify maximum age limit for the applicants.[11]

    [11] Law Review on Age Discrimination for Job Seekers in Indonesia, Siti Awaliyah, Suhariningsih ., Abdul Rachmad Budiono, Rachmad Safa’at, 2017, International Knowledge Sharing Platform, , accessed 13 October 2020.

40. It also appears that discrimination in wages is apparent between men and women.[12]

    [12] Discrimination driving gender wage gap in Indonesia, Asian Development blog, 20 June 2014, , accessed 13 October 2020.

41. That being said, the Tribunal accepts that after 12 years of residence in Australia, the applicant and his family would have difficulty returning to Indonesia, and in finding work in Indonesia, given the impact of COVID-19 on the Indonesian economy.

1. Next, and regarding the circumstances in which the ground of cancellation arose, this was due to the applicant having breached condition 8107(3)(b) which had attached to his former Subclass 457 visa.

2. The applicant had said his employment was terminated due to a change of management which had resulted in ‘unfounded hostility’. Also that the reason given for his termination by the new management was ‘incompetence and inadequacy’ (which was disputed by the applicant). The applicant believed however, that he and his spouse were deliberately forced out of the workplace by the new management. Be that as it may, the applicant appeared to have taken few if any steps to resolve his non-compliance until being issued the NOICC dated 4 February 2020; and other then tell a former owner of the premise were he worked, nothing else had apparently been don’t about the alleged hostility.

3. In his response to the NOICC, the applicant said he believed the Department would contact him if any further information was required. It was claimed the applicant had ‘never demonstrated any intention of circumventing the migration program’.[13] However, the Tribunal notes that applicants are given written advice as to their ongoing obligations when granted a visa; and the applicant would have or should have understood this given he had also held prior visas in Australia. The Tribunal does not accept the substantial period of time within which the applicant had breached his visa conditions, was due to an ‘honest misunderstanding’ as was claimed. Further, there is no information that has satisfied the Tribunal the applicant’s inability to find a new sponsor after over 14 months was due to circumstances entirely beyond his control.

   [13] PDF – p.79.

4. Next, the Tribunal has no adverse evidence of the applicant’s past and present behaviour, towards the Department or the Tribunal. Regarding whether there would be consequential cancellations under s.140 of the Act, according to Department records, the visas of the applicant’s wife and four children would also be cancelled.

5. Regarding whether there are any mandatory legal consequences that arise if the applicant’s visa is cancelled, in their decision the delegate noted (and the Tribunal accepts) the cancellation under the present grounds would not incur any penalty under PIC 4013, which might otherwise have prevented the applicant applying from overseas for a new visa once he had established his eligibility. Therefore, if the applicant wished to return to Australia in future, he could apply for a new visa in line with his new purpose for returning. Though when discussed at hearing, the applicant said that in reality, it may take years to be able to return to Australia (and the Tribunal accepts this may be correct).

6. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention (the applicant and his dependents are citizens of and hold passports of Indonesia).

7. Next, there is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.  That being said, two of the applicant’s children were under 18 years of age (13 & 16 years at the time of the delegate’s decision), and they had resided in Australia since 2009. The education of the two younger children may be adversely impacted if the applicant’s visa is cancelled. The children may therefore suffer some hardship if the applicant’s visa is cancelled.  

8. Respectfully, the applicant is not blameless for his present circumstances. However, he and his wife and children have studied and/or worked in Australia for over ten years; they have a largely unblemished visa record, they would have reasonable difficulty returning to Indonesia to work (particularly during the COVID-19 pandemic); and the Tribunal is not satisfied it is reasonable to disrupt the education and lives of the applicant’s four (principally teenage) children, who have spent the last more than ten years in Australia, by forcing them to either return to Indonesia to complete the education that may be available to them, or with respect to the two older children, to attempt to obtain independent Student visas to remain in Australia.

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

10. However, it will be in the applicant’s interest to attempt to regularise his migration status as soon as possible after receiving this decision.

    decision

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Mr S Norman
    Member