staunton (Migration)

[2018] AATA 1770

staunton (Migration) [2018] AATA 1770 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr James Michael Staunton
Ms Helena Rose Softley

CASE NUMBER:  1619094

DIBP REFERENCE(S):  BCC2016/3415350

MEMBER:Ian Berry

DATE:28 February 2018

PLACE OF DECISION:  Brisbane

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.

Statement made on 28 February 2018 at 4:06pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether grounds for cancellation exists – Applicant unemployed for more than 90 days – Grounds for cancellation exist – Whether the visa should be cancelled – Applicant not notified of cessation of employment – Where applicant has been made to take extensive unpaid leave – Applicant secured employment after becoming aware of non-compliance – Decision set aside and substituted

Practice and Procedure – Consequential cancellation – Tribunal has no jurisdiction to review consequential cancellations

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379 at 385
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 14 November 2016 made by a delegate of the Minister for Immigration to cancel the 1^st 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 1^st named applicant did not secure a new nomination position with a sponsor within a period of 90 days from the termination of his employment and therefore was in breach of Clause 8107 of the Regulations.

3. The 2^nd named applicant’s visa was cancelled under s.140(1) of the Act.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether there existed relevant factors which weigh in against the cancellation of the visa.

5. 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 1^st named applicant (“applicant”). The 2^nd named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

6. The applicants appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. The applicants were not represented.

7. For the following reasons, the Tribunal has concluded the ground for the cancellation of the applicant’s visa has been made out but in this instance, but there exists relevant factors which weigh against the cancellation of the applicant’s visa, and therefore, the decision to cancel that 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, to this case, this includes 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.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. The delegate identified cl.8107(b) – if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

10. Clause 8107(3) applies as it specifically refers to the applicant’s visa sub-class 457. It provides for the applicant, relevantly, to work only for his sponsor employer or the associated entity of that sponsor (the sponsor lawfully operating a business in Australia - (8107(3)(a)(B)). The applicant has not done so. The lifeline of 8107(3A) exempts persons who hold occupations listed in column 2 of the Schedule in IMMI 13/067. The occupation of sales and marketing manager does not come within that exemption.

11. The applicant has breached cl.8107(3)(b), and it is now the duty of this Tribunal to decide whether there are relevant factors which mitigate the breach, and thus allow the Tribunal to weigh those relevant factors in deciding to exercise its discretion to set aside the cancellation.

    Relevant Factors considered in respect of the Tribunal exercise its discretion.

12. The applicant  is a citizen of the United Kingdom who arrived in Australia under a student visa and graduated to a UC 457 visa with his partner Helena Softley who also the holder of a UC 457 as a co-applicant.

13. The sponsor’s nomination was approved for the on 7 August 2015. The applicant was granted a UC 457 visa on 14 August 2015.

14. Through information received by the Department, the delegate acted on that information (not disclosed on the Department’s file) to hold that the employment with the sponsor ceased on 22 June 2016. This is the substantive issue for this Tribunal as it is a relevant factor as to whether, among other factors, the extent the applicant has complied with his visa obligations, and if not, reasons why not.

15. The employment by the sponsor of the applicant was as a marketing and sales manager. He was responsible for a team of members who sought commitments from students to attend courses of educational institutions which were clients of the sponsor. It involved travelling throughout mainly Queensland but also parts of Australia[1]. The sponsor’s business was based on the Gold Coast. At the hearing, the applicant says that most of his work was undertaken at home or in travelling with the team members on recruiting campaigns. He was paid a salary and a commission.

    [1] T1, folio 88

16. Initially, the relationship between employer and employee was harmoniously productive though toward late 2015 the applicant says he was not being paid commission to which he was entitled. He was asked to take unpaid leave in early 2016. Later in that year,again asked to take more substantive unpaid leave, though owed paid leave.

17. In 2016, their relationship was deteriorating and this is to be gleaned from emails from the mainly the applicant. The applicant he was not being paid commissions earned by him. He was not given paid leave to which he was entitled but suggested he take unpaid leave.

    (a)In his response letter[2] to the Department’s letter of asking him to show cause why his visa should not be cancelled, the applicant referred to the sponsor pressuring him by suggesting it might cancel his visa.  His email to the Department states the following:

    “However 2016 has been a really difficult year for us, predominantly for the reason that my employer have been difficult at best to deal with.  From the start of the year they were reluctant to commit to the availability of work.  Which led me to having to take a period of unpaid leave early on this year.  After returning from leave my employer subcontracted me out to a few of their friends companies.  Unfortunately they continued been difficult to deal with resulting in ongoing issues with pay, ongoing issues of commission and, refusal to acknowledge accrued sick pay and annual leave.”

    “However the employer refused to offer any sick pay/holiday pay that I was entitled to and again threaten me with ‘cancelling my visa’ because they didn’t want to pay me for 6 weeks if I was not working, (even though I was available and wanting to work.)  The only terms they were happy to accept is that I take another period of ‘Leave without Pay’ because they did not want to pay me for 6 weeks.”

    “They were operating a new company of new partners, but were not willing to pay my salary just in case it didn’t work out.  I explained to them that regards to my visa situation that is not as easy as just cancelling it and then starting it again once they had worked for me.  So they agreed to the annual leave without pay from 27 June 2016 with last day of leave being Friday 30 September, which was a duration way longer than I was comfortable taking and was going to put me and my partner under financial stress however it appeared to be our only option and we just had to work through it.”

    [2] D1, folio 13

18. Though he says he was owed commissions, sick leave and annual recreation leave, his employer insisted he take unpaid annual leave.

19. The first unpaid leave request was from 11 January 2016 to 24 January 2016, a period of 9 days. The reason for the unpaid leave was “to care temporally for a family member”.

20. It was alleged the employment of the applicant ceased working for the sponsor on 22 June 2016.There is no evidence from the Department as to the basis of information upon which 22 June 2016 was based, but it is reasonable to suspect the sponsor was the informant . The Tribunal is satisfied that the applicant did not receive any notice of cessation of employment from the sponsor. The emails from the applicant received by the Tribunal after the hearing authenticates the applicant’s version.

21. The Department did not have before it the emails passing between the sponsor and the applicant and these emails as they are dated well after the 22 June 2018 corroborates the acrimony between the sponsor and the applicant. It gives credence to the applicant’s version that the termination of employment did not happen on 22 June 2016, for example:

    Email from the applicant to the sponsor’s Manager Anthony Gilbertson on 28 September 2016 at 10:13 am.[3] Subject: “Can’t get a hold of Graeme or Terry”

    [3] T1, folio 96

    “have you heard from Terry or Graeme.  I can’t get hold of them of either of them.  Myself and a bunch of the guys are ready to work as of Monday.  Can you get back to me if possible on… (Mobile phone number deleted by the Tribunal).  I did try ringing earlier but it just rang out.

    Cheers James”

    On Monday 3 October 2016, the applicant emails the directors Mr Graeme Beard and Mr Terry Beard.[4]  “Subject: URGENT - Where to Work”

    [4] T1, folio 97.

    “Morning

    I haven’t heard back from either of you and I have tried to call Ant.  Today I am going to go over with the team; retraining, software updates and new changes to the scheme.  If you can give me a call of email as to where you would like us to work and everything is good to go with compliance that would be great.

    Cheers”

    Monday, 10 October 2016 at 7:44 AM, email from the applicant to Mr Graeme Beard and Mr Terry Beard.[5]  “Subject: URGENT”

    “Guys, I can’t for the life of me get hold of either of you.  Everyone is tight for cash and have had to start with a different provider.  I’m going to have to look for a new employer who is willing to responser.  I would love to be able to stay employed for you both and make the process as smooth as possibly to be able to apply for residency but things have gone way beyond being tight for money.  Me and Helena are living of just her wage and are having to use food stamps to help with the food shops.

    If you can get back to me on… (Phone number deleted).  I am using Wi-Fi at the moment to send this as my phone has been cut off.  But I can still receive calls.

    If you are unable to support my full employment will I be able to please have any accrued annual leave paid to help pay my rent?  It doesn’t have to be all in 1 hit but really could do with that money.

    Cheers,

    James”

    Email from the applicant to Mr Graeme Beard and Mr Terry Beard the directors of the sponsor trust sent on 11 November 2016 at 8:39 PM.[6]

    [5] T1, folio 97

    [6] T1, folio 98.

    “Subject: URGENT - Notice To Cancel Visa

    Hey I have just got off the phone with Simone [the applicant’s migration agent] and she’s advised me that this would have meant you had contacted the Department months ago.  What the f—k!  Over the last 4 months you have properly f--ked me over.  I have chased monies owed, literally at times worked for free and I am now behind on literally every single bill you can think of.  Making me sign a leave without pay form when all along you had or had the intention to contact immigration.  You have left me and Helena financially in a horrible position and now I have had absolutely no chance to find an employer and get a re-sponsorship through.  I literally have 2 hope they don’t officially cancel my visa and give me a chance for the company wanting me to work for them to get the response or in just because you couldn’t at least given me the courtesy to reach out and tell me.  Absolute cowards!

    I don’t expect I’ll hear anything back especially since I have tried to contact you tonnes of times over the last couple of months to try and start working for you again.  It seems like I have had more interest to make money for you than you actually do.

    I really hope you both get exactly what you deserve.”

22. The applicant says the email of 11 November 2016 is the first notification his employment having ceased.  The Tribunal refers to this email and is satisfied that it corroborates the applicant not receiving notice of cessation of employment on that date. 

23. Relevant to the acrimony building between the applicant and the sponsor, the applicant requested he be paid his commissions and be given paid leave rather having to take unpaid for a considerable period. For instance, because of a shortage of work, he was requested to take leave from 27 June 2016 to 30 September 2016, a substantial period of time and in the order of about 67 days. This was the period where it is alleged by the Department the applicant’s employment ceased.

24. The applicant says that both he and his partner lived from her income which put them in financial difficulties. The Tribunal gives substantial weight to the applicant’s submission. It is reasonable to expect financial difficulties when a household’s income is reduced by half, particularly when it was being relied on and little indication was given of a changing financial position for the applicant and his partner. The Tribunal is satisfied that financial hardship fell upon the applicant’s household.

25. Most important to the relevant factors is the extenuating circumstances as to how the ground of cancellation arose. The Tribunal accepts the applicant’s version of events where he was working for a sponsor, requesting direction as to the way he was to do his work but receiving very little in response. The Tribunal is satisfied the emails from the applicant to his sponsor weigh heavily in corroborating the predicament both he and his partner found themselves in the applicant having to search for another sponsor. His migration agent states he did not obtain employment until January 2017.

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

    DECISION

27. 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.

    Ian Berry
    Member