Souza Dos Santos (Migration)

[2020] AATA 3409

Souza Dos Santos (Migration) [2020] AATA 3409 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marcelo Patrick Souza Dos Santos

CASE NUMBER:  1932359

HOME AFFAIRS REFERENCE(S):          BCC2018/2318477

MEMBER:Antoinette Younes

DATE:20 August 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 408 (Temporary Activity) visa.

Statement made on 20 August 2020 at 2:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – genuine temporary entry for work for which visa was granted – ceased employment with sponsor and working for another employer – terms and conditions of contract with sponsor – required to return part of remuneration – application to Fair Work Australia – discretion to cancel visa – position nomination by other employer pending – relationship with Australian citizen – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 375A(2)(b)

Migration Regulations 1994 (Cth), r 2.43(1)(1A), Schedule 8, 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 408 (Temporary Activity) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that there exists a prescribed ground for cancellation. 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 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr C Basescu.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   SECTION 375A CERTIFICATE

6. The Departmental file contains a s.375A certificate on the basis that documents subject to the certificate may disclose or enable a person to ascertain the existence or identity of a confidential source.

7. Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure, otherwise than to the Tribunal, would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.

8. The Tribunal has carefully considered the Certificate and is satisfied that the certificate is not valid as it does not clearly set out the documents subject to the certificate or fully-inform the Tribunal of the specific reasons for excluding a number of documents. The Tribunal notes however that some of those documents relate to allegations made about the applicant in terms of his work performance and conduct during his employment with the sponsor which led to the termination of his employment.

9. The Tribunal recognises the Australian Privacy Principles (APP6) set out in the Privacy Act 1988. However, in accordance with procedural fairness obligations, the Tribunal discussed with the applicant the gist of the allegations made without revealing the source. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)(g). 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?

    Section 116(1)(g) - prescribed ground

11. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(ia) is relevant. Subregulation r.2.43(1)(ia) provides that for the purposes of s.116(1)(g) and in relation to a subclass 408 visa, that the prescribed grounds in subregulation (1A) are met.

12. Subregulation (1A) states that the prescribed grounds for cancellation are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of the grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa was granted, or if the visa holder is identified in a nomination after the visa is granted, the visa holder was identified in a nomination.

13. During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant had provided to the Tribunal in support of the application for review. Relevantly, the Tribunal noted the following:

    a)The employer in relation to which the visa was granted is the AUSTRALIAN NATIONAL AND INTERNATIONAL CIRCUS MANAGEMENT PTY LTD (the sponsor). The applicant was granted the visa for the purpose of work in the occupation of Entertainer or Variety Artist for the sponsor.

    b)Subsequent to the grant, the sponsor advised the Department that the applicant had ceased employment with the sponsor on 27 May 2018. There is also information before the Department that the applicant is working for an employer other than the one for which his visa was granted. Checks revealed that at the time of the notice of intention to consider cancellation (NOITCC), namely on 14 October 2019, the applicant was working as a choreographer for Rio Projekt and as a dance instructor at the Escola de Samba International.

    c)As the applicant had ceased employment for the sponsor, it appeared that he had ceased to have a genuine intention to stay temporarily in Australia to carry out the work in relation to which the visa was granted.

    RESPONSE TO NOITCC

14. In a Statutory Declaration of 25 October 2019, the applicant referred to his background and to the terms and conditions of his contract with the sponsor. He noted that:

    ·He was advised by a work colleague within the sponsor’s business that he would not be entitled to receive the full remuneration amount stipulated in the signed employment agreement.

    ·He was advised that every performer is required to return a part of their remuneration to the company, an amount that varied from month to month. He was told to transfer a set amount of wages from his bank account to a work colleague who would, in turn, withdraw and return the funds to the owner of the sponsoring business. The payback scheme is forced upon all other performers.

    ·He felt demoralised and helpless.  His employment was terminated on 27 May 2018, when he raised concerns with the sponsor.  He approached the Consul of Brazil in Queensland and Fair Work Australia. He is apprehensive, fearful and alarmed at all times. He has skills and talents. CareToDance Pty Ltd (CareToDance) has shown a desire to sponsor him for a subclass 482 but the entity requires additional time.

15. In submissions dated 25 October 2019, the representative provided a summary of the applicant’s background, relevant law and policy. Relevantly, the representative noted the following matters:

    i)   There were several employment issues between the applicant and the sponsor and the applicant approached Fair Work Australia and that matter has been finalised. The applicant ceased working for the sponsor on or around 27 May 2018. Since then, he has been supported financially by his Australian partner.

    ii)     The applicant has been approached by CareToDance, an Australian based business specialising in Latin dance varieties and entertainment. It is intended that CareToDance would be pursuing a subclass 482 of the applicant.

    iii)   Upon arrival in Australia, the applicant was initially advised by a work colleague within the sponsor’s business that he would not be entitled to receive the full remuneration amount stipulated in the signed employment agreement. The applicant was advised that every performer is required to return a part of their remuneration to the company, an amount that varied from month to month. The applicant was told to transfer a set amount of wages from his bank account to a work colleague who would, in turn, withdraw and return the funds to the owner of the sponsoring business. This payback scheme is forced upon all other performers, numbering approximately 20 in May 2018, within the nominating business.

    iv)   The applicant sought assistance from the Consul of Brazil in Queensland. The applicant continued to raise concerns about the sponsoring entity which in turn terminated the applicant’s employment on an immediate basis. Subsequently, an application was lodged with Fair Work Australia. During this time, the applicant was feeling “… Severely apprehensive, fearful and alarmed…” at all times.

    v)    The applicant was embarrassed and ashamed.  When he left Brazil, he had not anticipated that such events would take place. He found it difficult to confide in his family overseas. The applicant sought to comply with his visa conditions but there were circumstances that were beyond his control.

    vi)   CareToDance considers the applicant to be a skilled person. The applicant’s skills have attracted the attention of notable individuals.

16. In support of the submissions, the applicant provided multiple references Affidavit of the applicant, relationship statement and Australian identity documents of his partner, certificate of appreciation from the NSW Cancer Council, email regarding Australia’s Got Talent 2020, Statutory Declaration of Managing Director, CareToDance Pty Ltd, applicant’s biography, and photographs of the applicant performing. The applicant also provided a copy of his Commonwealth Bank account showing regular transfers out of the applicant’s account to another Commonwealth Bank account.

    MATERIAL PROVIDED TO THE TRIBUNAL

17. The applicant provided substantial documents to the Tribunal, some of which were provided to the Department in response to the NOITCC.  The applicant provided references/letters of support from CareToDance Pty Ltd, 7 Flavours, Topazio, iCrave Dance and Entertainment, Rio Projeckt, NSW Cancer Council and Australia’s Got Talent 2020.  He also provided submissions, a Statutory Declaration, documents relating to his relationship with an Australian citizen, applicant’s biography, photographs of performances, and CareToDance Pty Ltd TSS (subclass 482) nomination for the applicant lodged on 11 August 2020.

18. In the course of the hearing, the applicant, the applicant agreed that he ceased employment with the sponsoring entity.  He offered explanations which are discussed below.

19. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. The Tribunal finds that by ceasing employment with the sponsor on 27 May 2018, the applicant had ceased to have a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa was granted.

20. As cancellation under s.116(1)(g) is not mandatory under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

21. 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

22. The applicant arrived in Australia on 1 December 2017 following the grant of a subclass 408 visa to work in the nominated occupation of Entertainer or Variety Artist for the sponsor.  On 13 March 2018, he was granted the current subclass 408 visa to work for the sponsor.  On 27 May 2018, he ceased employment for that sponsor as he was terminated by the sponsor.  On the evidence, the Tribunal is satisfied that the applicant’s purpose to travel to Australia was to work for the sponsor and the applicant did, consistent with that purpose. 

23. The applicant gave evidence that there were serious challenges and difficulties with the sponsor.  He explained that all performers were required to pay back part of their salary to the sponsor through a third-party part of their salary.  He stated that essentially, he had to pay half of his net earnings back to the sponsor, through their manager who told the performers that if they did not pay back, they would lose their jobs with the sponsor.  The applicant gave evidence that the work conditions were inconsistent with the contract in that they were required to perform tasks inconsistent with the role and work more than 10 hours a day and be expected to perform in shows at the end of the day.  He said when he started to complain, he was threatened with dismissal.  He felt that this was unfair and inconsistent with the contract.  He felt that he was being blackmailed.  He consulted with the Consul of Brazil and complained to Fair Work Ombudsman (FWO).  The Tribunal asked the applicant about the outcome of the complaint and he stated that other complainants got apprehensive and the case lost its strength.

24. The Tribunal observes that the applicant, and despite being pressed by the Tribunal, did not specifically state that the outcome of the complaint was unfavourable.  Although the Tribunal has regard to, and respect for other Australian institutions, their findings are not binding on the Tribunal.  The Tribunal does not know the reasons for the outcome by FWO, however, it is entirely plausible that several complainants dropped out, leaving the applicant alone which would have ‘weakened’ the case.

25. The Tribunal found the applicant generally credible.  He did not attempt to exaggerate what had occurred and his evidence is supported by corroborative evidence such as bank statements showing substantial regular withdrawals from his account.  The Tribunal acknowledges that the sponsor might have a different version of events but on the evidence, the Tribunal accepts that the applicant had to pay back to the sponsor about half of his net pay, that he had to perform other duties and work longer hours, inconsistent with the terms and conditions of the contract signed by the parties.  The Tribunal is of the view that the payback scheme is serious and the applicant’s perception of being blackmailed has some basis. The applicant is young; he is 24 years of age now and those incidents occurred when he was about 22. Non-compliance with the law is serious and the applicant breached s.116(1)(g). The Tribunal however finds that the reasons for the non-compliance should be given significant weight in the applicant’s favour.

26. The applicant is currently subject to a TSS nomination lodged recently by CareToDance Pty Ltd which if successful would mean that the applicant is able to lodge the application for the TSS subclass 482 application.  The determination of the nomination is entirely a matter for the Department and the Tribunal makes no comments about the merit of this application.  A representative of CareToDance Pty Ltd, Mr Basescu gave evidence of the significant contribution that the applicant has made to the entity and the need for his employment as noted in the nomination application.  Mr Basescu spoke highly of the applicant and the need for his skills.  The Tribunal is persuaded by Mr Basescu’s evidence.

27. The Tribunal is satisfied that on balance, there are compelling reasons for the applicant to remain in Australia.

28. The Tribunal gives this aspect significant weight in favour of the applicant.

    ·the extent of compliance with visa conditions

29. The applicant’s visa was subject to condition 8107, which requires, amongst other things, the visa holder not to cease being employed by the employer in relation to which the visa was granted.  The applicant did cease employment with the sponsor and therefore he has not complied with condition 8107 attached to his visa.

30. The Tribunal gives this aspect weight in favour of cancellation.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. The applicant stated that his visa should not be cancelled because his employment was terminated for reasons beyond his control.  He provided substantial evidence demonstrating noteworthy skills.  He stated that he would like to stay in Australia to pursue a career within his expertise.  The applicant is in a relationship with an Australian citizen.  The relationship is that of girlfriend/boyfriend.  

32. Mr Basescu, the witness is the applicant’s nominating employer and he gave evidence.  He spoke highly of the applicant and of the significant contribution made by the applicant to the business, without which the business could be compromised during the COVID-19 pandemic when small businesses are facing serious challenges.

33. The Tribunal accepts that the cancellation of the applicant’s visa could potentially result in hardship including psychological, emotional and financial to the applicant as well as the nominating entity.

34. The Tribunal gives significant weight to the evidence of Mr Basescu who considered the applicant to be an asset to the business.

35. The Tribunal gives those aspects weight in the applicant’s favour.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

36. The circumstances in which the ground for cancellation arose are that the applicant did not comply with s.116(1)(g) of the Act.

37. The applicant has accepted that there is a ground for cancellation.  The applicant has given evidence and provided submissions and supporting documents that the issues with the employer as outlined above were beyond his control.  It is not the Tribunal’s task to punish, or blame, or find guilt.  However, the Tribunal is satisfied that the pay back scheme led to a serious conflict between the applicant and the sponsor with the consequence of the applicant being dismissed.  In those circumstance, the Tribunal is satisfied that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

38. The Tribunal gives significant weight to this consideration in favour of the applicant.

    ·past and present behaviour of the visa holder towards the department

39. The applicant responded to the NOITCC and has fully engaged in the cancellation process.

40. The Tribunal gives this aspect weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

41. There is no evidence before the Tribunal of any consequential cancellation under s.140.

42. The Tribunal gives this aspect neutral weight.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. The cancellation of the applicant’s visa means that unless the applicant makes other arrangements, he could be liable for detention and removal from Australia. He would also encounter difficulties in being granted any further visas. The Tribunal considers those potential consequences to be serious however they are intended legislative consequences.

2. The Tribunal gives this aspect neutral weight.

   ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

3. There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations, in case of cancellation.

4. The Tribunal gives this aspect neutral weight.

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

5. The subclass 408 is not a permanent visa. Had it not been cancelled, the visa would have expired on 19 January 2020.   In any event, there is no evidence before the Tribunal of strong family or other ties; the applicant’s mother and younger siblings live in Brazil.

6. However, on the evidence, the Tribunal is satisfied that the applicant has strong business ties with an Australian business which would suffer in case the applicant has to depart Australia.  The Tribunal has acknowledged and given some weight in his favour in this regard.

7. On balance, the Tribunal gives this consideration weight in the applicant’s favour.

   ·any other relevant matters

8. The Tribunal is not aware of any other relevant matters for its consideration.

9. The Tribunal has considered the evidence independently and cumulatively. There are aspects that weigh in the applicant’s favour and there are those that are in favour of cancellation. On balance, the Tribunal is satisfied that the considerations that weigh in favour of the applicant outweigh other considerations.

10. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

    Antoinette Younes

    
    Senior Member