Sierra (Migration)

[2019] AATA 3586

Sierra (Migration) [2019] AATA 3586 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thelma Sierra

CASE NUMBER:  1728015

HOME AFFAIRS REFERENCE(S):           BCC2016/2052290

MEMBER:Sheridan Lee

DATE:18 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 July 2019 at 9:47am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – breach of condition 8107 – applicant ceased employment with sponsor – no new nominations pending – has an Australia citizen partner – intending to apply for a permanent visa – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 189, 198, 351
Migration Regulations 1994, r 2.72, cl 457.223

CASES
Sierra v Comphire Pty Ltd [2016] FWC 3271
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 July 2016 made by a delegate of the Minister for Immigration and Border Protection 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 applicant had breached condition 8107 of her Subclass 457 visa as she had ceased working for her sponsoring employer for more than 90 days. That decision was affirmed by the Tribunal (differently constituted) on 3 February 2017. The applicant appealed that decision to the Federal Circuit Court and on 8 November 2017 the matter was remitted to the Tribunal by consent for reconsideration. 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 appeared before the Tribunal on 18 March 2019 to give evidence and present arguments. The Tribunal notes that the applicant had indicated she would like it to receive evidence from her partner, Mr Francesco Madafferi, friend, Mr Jason Carreon, and her daughter in the Philippines on her response to the hearing invitation. At the hearing, the Tribunal noted that the matter was remitted on the basis that the applicant had requested that evidence be taken from a witness (Mr Carreon) and that evidence was not taken. The Tribunal clarified with the applicant who she would like the Tribunal to speak with and she confirmed that she would like the Tribunal to receive oral evidence from Mr Francesco and Mr Carreon. The Tribunal took evidence from those two witnesses on that basis.

4. 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

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). 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.

   Background

6. The decision record of the delegate, which was provided to the Tribunal, outlines that the applicant was granted a Subclass 457 visa on 25 October 2013 on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted with an expiry of 19 July 2016, subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

7. The applicant was initially sponsored by Parafield Properties Pty Ltd for the occupation of Accountant, however her employment with that company was terminated in March 2014. The applicant secured a new employer and was subsequently sponsored by Comphire Pty Ltd. Her Subclass 457 visa expiry date was changed to 25 October 2017.

8. On 11 March 2016, the Department was advised in writing by Comphire that the applicant’s employment was terminated as at 1 March 2016.

   Notification procedures

9. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

   [1] Section 119.

10. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

11. The delegate’s decision outlines that on 5 July 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had received written advice from her sponsoring employer on 11 March 2016 that she had ceased her employment effective from 1 March 2016. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 11 July 2016.

12. In the circumstances, the Tribunal considers that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

13. 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. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

14. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

15. In the applicant’s response to the notice, she provided paperwork relating to an unfair dismissal claim lodged with the Fair Work Commission on 24 March 2016. In her statement of claim, she indicates that she received formal notice of termination in a letter on 24 March 2016. The letter purported to terminate her employment from 1 March 2016. The Commission ultimately accepted that the applicant’s employment was terminated on 1 March 2016, however there were exceptional circumstances that allowed for an extension of time to lodge and the matter proceeded to arbitration.[3] On this basis, the Tribunal accepts that the dismissal became effective from 1 March 2016.

    [3] Sierra v Comphire Pty Ltd [2016] FWC 3271, [15].

16. At the hearing, the applicant confirmed that she has not worked for her sponsoring employer since that time and there are no new nominations pending.

17. As such, 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. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

18. 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’.

19. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. 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.

20. 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 and the oral evidence from the applicant and witnesses at the hearing.

21. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

    The purpose of the visa holder’s travel to and stay in Australia

22. The applicant first arrived in Australia on 2 December 2013 on a Subclass 457 visa to work as an Accountant. She has four children: two daughters aged 22, a daughter aged 21 and a son aged 15 at the time of the hearing. The applicant’s children continue to reside in the Philippines and she sends money home to support them. A number of international money transfer slips showing payments to Certh Cyrine Sierra in the Phillippines were provided as evidence of this financial support.

23. The applicant is currently working at JVMC Accountants as a casual accounts adviser and has a partner, Mr Madafferi, who is an Australia citizen. The couple both expressed a desire to remain together in Australia. Mr Madafferi gave evidence that he has been in a relationship with the applicant for nearly two years and she is the love of his life. She assists him financially and emotionally – helping him to pay bills and quit smoking.

24. The applicant’s representative acknowledged that the couple intend to apply for a Subclass 309 visa if the applicant is required to depart Australia. However, he noted that there is a long processing delay and the couple would be separated for that time. This would cause both stress and financial hardship.

25. The Tribunal acknowledges that the separation of the applicant from her partner may cause some emotional stress for them both. However, notes that the separation would not necessarily be permanent. While the applicant outlined her desire to remain in Australia to be with her partner and earn a better salary than she might have the capacity to earn in the Philippines, she did not outline any compelling need to remain in Australia. The Tribunal notes that three of the applicant’s four children are now adults and while she may not earn the same salary as in Australia, she would not be prohibited from gaining employment in the Philippines.

26. The Tribunal can appreciate that for many visa holders the opportunity to send money to relatives offshore may be the personal motivation for working in Australia. Nevertheless, at the hearing, the Tribunal noted that the purpose of the Subclass 457 visa scheme was to fill skills shortages in the Australian workforce, not to provide an avenue for nominees to send money to family offshore.

27. Further, as discussed with the applicant at the hearing, due to legislative amendments that took effect from 18 March 2018, it is no longer possible to lodge a new nomination application under the Subclass 457 scheme.[4] As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor her under the Subclass 457 scheme. Further, her visa would have come to its natural expiry on 25 October 2017. Accordingly, given this and the fact that the applicant ceased her employment with Comphire in March 2016, the Tribunal finds that the purpose for the visa holder’s travel to and stay in Australia no longer exists.

    [4] A nomination under the Subclass 457 vis scheme must have been applied for before 18 March 2018 (whether approved before or after that date), because of changes to the legislative scheme which mean that nomination applications made on or after that date are not made in relation to applicants or proposed applicants for Subclass 457 visas. Rather, they are made in relation to applicants/proposed applicants for Subclass 482 visas or to holders of Subclass 482 or Subclass 457 visas. See r.2.72(1) as repealed and substituted by F2018L00262.

28. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

29. There is no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

30. At the hearing, the applicant confirmed that she has had no other compliance issues with the Department since arriving in Australia in 2012. This weighs against exercising the discretion to cancel.

    The degree of hardship that may be caused to the visa holder and any family members and consequential cancellations under s.140

31. As outlined, the applicant has four children residing in the Philippines. There are no dependants included on the applicant’s visa and as such, no consequential cancellations under s.140 of the Act.

32. At the hearing, Mr Carreon gave evidence that he met the applicant through the Catholic Church in Melbourne. He is also Filipino and gave evidence that the income in the Philippines would be about $14 a day. He also felt that the separation of the applicant from her partner would be a psychological set back.

33. The Tribunal accepts that the applicant sends money to assist her children and that they may experience some financial hardship if she were to depart Australia. However, the Tribunal notes that all but one of her children are now adults. There is no evidence before the Tribunal to suggest that the applicant’s adult children are unable to work or generate an income. The Tribunal further accepts that the applicant assists her Australian partner emotionally and financially. While it may be preferable for him to continue receiving this assistance, the Tribunal considers that the hardship would not be insurmountable. As an Australian citizen, Mr Madafferi would have access to the same support offered to all low-income earners and would not be prevented from staying in contact with her on a regular basis.

34. The applicant gave evidence that she had hoped to remain in Australia and use her Subclass 457 visa as a pathway towards permanent residency. Were it not for the actions of another, that option would still be available to her. The Tribunal sympathises with the applicant’s situation. However, the Subclass 457 visa was a temporary visa, with no guarantee that the visa holder can remain in Australia following its expiry. In addition, the applicant would not be prevented from applying for another visa offshore.

35. While it may be upsetting for the applicant to depart Australia and spend time away from her partner as a result of long processing delays, the Tribunal does not consider these compelling factors to prevent the exercise the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

36. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

37. In the applicant’s written response to the notice of intention to cancel her visa, she outlined that her employment with her first sponsor, Parafield Properties, ended after she filed a complaint with the Department and the company was found to be in breach of its sponsorship obligations. She then commenced employment with Comphire.

38. In January 2016, her boss at Comphire, Mick Flynn, become highly critical of her work after she advised him that she did not reciprocate romantic feelings for him. Then in March 2016, Mr Flynn physically hurt the applicant and verbally and emotionally abused her. He told her to leave the office and not to return. The applicant outlined that she was a hard working employee and always did her best. She claims to have suffered significant stress as a result of the treatment she received. The applicant lodged an unfair dismissal claim with the Fair Work Commission on 24 March 2016.

39. At the hearing, the applicant supplied the Tribunal with a copy of the terms of settlement between herself and Comphire, dated 1 August 2016. The settlement includes a pay out to Ms Sierra in return for discontinuing her claim before the Fair Work Commission, amongst other things. Comphire deny the allegations put forward by the applicant in the terms of settlement. At the hearing, the applicant gave evidence that she accepted the settlement as pursuing the action further was cost-prohibitive.

40. The applicant has supplied the Tribunal with some brief notes from her General Practitioner from visits she made in early 2016. The Tribunal accepts that the applicant suffered stress as a result of the events leading up to the termination of her employment with Comphire. The Tribunal further accepts that she made attempts to secure a new sponsoring employer prior to the expiry of her visa. However, the applicant’s non-compliance with condition 8107 of her visa is substantial, in the sense that at the time of decision she has not been employed with her sponsoring employer for more than three years. When considered within the context of the purpose of the Subclass 457 visa program, this weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

41. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

42. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

    Australia's international obligations

43. 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).  

44. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

    Any other relevant matters

1. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

2. Nevertheless, the Tribunal expresses the hope that the Department gives due consideration to the circumstances that led to the applicant’s non-compliance with condition 8107, as well as the reasons set out in this decision record in terms of any future immigration matters affecting the applicant in Australia. 

3. At the hearing, the applicant’s representative made a request for the matter to be flagged for the possible exercise of the Minister’s discretion under s.351 of the Act. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister.

4. I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.

   DECISION

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

   Sheridan Lee
   Member