Stephani (Migration)

[2018] AATA 5252

Stephani (Migration) [2018] AATA 5252 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shindy Stephani

CASE NUMBER:  1800897

HOME AFFAIRS REFERENCE(S):           BCC2017/3785824

MEMBER:Alan McMurran

DATE:11 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2018 at 12:06pm

CATCHWORDS
MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) visa – ceased employment with sponsor over 60 days – applicant resigned from role – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116(1)(b)
Migration Regulations 1994, Schedule 2, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 January 2018 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 delegate cancelled the visa under s.116 (1)(b) on the basis that the applicant ceased her employment with her sponsor effective 17 September 2017 for more than 60 days. 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 did not appear before the Tribunal. The Tribunal sent a letter to the applicant on 12 October 2018 requiring a response on or before 26 October 2018. The applicant did not respond to the Tribunal’s letter and lost any entitlement she might otherwise have had to appear to give evidence and present arguments.

4. As at the date of decision, the Tribunal has still not received any response from the applicant.

   Background

5. The applicant is a 27-year-old Indonesian citizen. According to the Department’s movement record, the applicant first came to Australia on 21 July 2014 on a higher education sector 573 visa, as a student.

6. On 12 April 2017, the applicant was issued a subclass 457 visa, sponsored by The Lodge Lane Cove Proprietary Ltd (the sponsor). The 457 visa was subject to a number of conditions including condition 8107 which requires that the visa holder must work only in the occupation listed in the most recently approved nomination by the sponsor.

7. On 25 September 2017, the applicant sent an email to the Department giving notification of her resignation from her employment with the sponsor.

8. On 20 December 2017 the Department sent to the applicant a Notice of intention to consider cancellation of the applicant’s visa.

9. The applicant responded on 2 January 2018, and gave an explanation in reply. Details concerning the explanation appear in the consideration and reasons which follow

10. On 3 January 2018, the sponsor advised the Department that the employment had ceased and the applicant had not been employed with the sponsor effective from 17 September 2017.

11. On 8 January 2018, the Department cancelled the applicant’s visa.

12. On 12 October 2018 the applicant was invited by the Tribunal to provide information and to comment on the issues as to whether there were grounds to cancel the visa under section 116 of the Act, and further if there were grounds, what other relevant information the Tribunal should consider in weighing up the issue of whether cancellation should follow. The applicant was asked to respond by 26 October 2018, but did not do so.

13. 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

14. 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).

15. 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.

16. In consideration of the matter, the Tribunal has had regard to the information contained in the Department’s file[1] and the Tribunal’s file and the submissions contained in the applicant’s email dated 25 September 2017 at 1:26 PM and her email dated 2 January 2018 at 6:15 PM.

    Does the ground for cancellation exist?

    [1] BCC2017/3785824

    s.116 (1)(b) - non-compliance with conditions

17. 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 was attached to the applicant’s visa. This condition requires that the visa holder when issued with the visa to enable the holder to be employed in Australia, must not:

    a.cease to be employed by the employer in relation to which the visa was granted; or

    b.work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    c.engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

18. The condition 8107 attaches to the last substantive visa held by the applicant, being a subclass 457 skilled visa granted on the basis the applicant must work only in the occupation listed in the approved nomination.

19. The Tribunal finds on the information in the Department’s file that the applicant was working in an occupation as nominated by the sponsor.[2]

    [2] DOHA file f 9

20. The applicant informed the Department in her email of 25 September 2017 that she had resigned from her employment with the sponsor. The applicant explained the reason for her resignation as follows:

    “(sic) The reason of resignation are generaly about the the over work hours and unpleasant actions from one of the owner (such as offensive word)… Please kindly consider about my resignation is genuinely because the treatment from my employer.”

21. In an email on 2 January 2018 at 6.15pm the applicant responded to the Department’s notice of intention to consider cancelling the visa. The applicant said[3]:

    “….I decided to cancel my visa due to an overworked hour that my employer (The Lodge Lane Cove) gave me, they oblige me to work min. 56 hours per week for the first months and they would cut down the hours every 6 months…. Moreover, my employer always put me 6 days in a week since I started working and I finally had 5 days work for last 1.5-2 months I worked there. Sometimes they put me 10 days in a row because they are having a vacation or some other staff is going away. The next reason is about the owners treatment to their staffs… She mentally abused all the staffs, especially the sponsorship staffs, by pushing us to do whatever she asked, then when we did a mistake, she could say a really offensive words, or being sarcastic…. I couldn’t really accepting how my employer treats the sponsorship staffs like slavery. So I decided to end the employment and looking for a regional sponsorship visa.”

    [3] DOHA file f 15

22. The applicant also said:

    “Since I ended my employment, I genuinely put so much effort to find for another employer who is willing to sponsor me. I have hired an HR company to help me find a company who is looking for employee. Due to my Visa condition, which I can’t work for other company, it affects the consideration of the decision from the employers who were willing to sponsor me. Therefore, it has been really hard for me to find an employer who is willing to sponsor without me working for them during the process of organising the visa application. However, I believe that now I have a company who is willing to sponsor me in Darwin, and I plan to lodge an application for the RSMS 187 visa early in 2018….. I would like …DIBP to consider allowing extra time in order to make this application.”

23. The Tribunal notes there has been no further communication from the applicant since the above email.

24. The Tribunal has had regard to the Department’s information and file. The Tribunal finds there is no current nomination application under consideration by the Department.

25. The Tribunal finds that the applicant did not return to work with the sponsor or an approved new nomination for another employer within 60 days of ceasing employment with the sponsor.

26. On the information before it, the Tribunal finds it is satisfied the applicant ceased to be employed by the sponsor in relation to the employment for which the 457 visa was granted.

27. For these reasons, the Tribunal is satisfied that the ground for cancellation in s116 (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 – How should it be exercised?

28. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

29. 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’.

    Purpose of the applicant’s travel to and stay in Australia

30. On the information available to the Tribunal, the Tribunal finds as follows.

31. The applicant originally came to Australia in July 2014 as a student. In about April 2017, the applicant remained in Australia to enable her to work on a temporary 457 visa issued to her following a successful nomination by the sponsor.

32. Between April and September 2017 the applicant worked for the sponsor. On or about 25 September 2017, the applicant resigned from her employment for the reasons explained by her and set out above.

33. Since that time, the applicant has been unable to find any suitable alternative employment and has made no further applications in respect of a substantive visa or such other application as might be open to her. As at the date of decision, the applicant is not employed by the sponsor and on the information available to the Tribunal, has not found suitable or other employment or been nominated for or obtained a substantive visa.

34. The applicant was aware of the condition 8107 attached to her visa and which she concedes in her explanatory email of 2 January 2018, noting the visa condition is preventing her from finding other suitable sponsors.

35. The Tribunal finds there are no relevant facts matters or circumstances relating to the applicant’s travel and stay in Australia which might warrant the exercise of discretion not to cancel the visa.

    Extent of compliance with visa conditions

36. The applicant has accepted that she is in breach of her visa conditions by leaving the employment. There is no information before the Tribunal that the applicant sought advice or considered whether any other option might have been open to her, other than resigning from the employment.

37. There is no information that the applicant contacted Fair Work Australia or any other workplace advocate on her behalf in order to seek assistance with the employment.

38. Having resigned from the employment, being an intentional act on the part of the applicant and initiated by her, the Tribunal regards the breach of the condition 8107 as a serious matter.

39. The Tribunal notes the explanation by the applicant as regards the behaviour of the employer and the attempts by the applicant as stated by her to find another employer and/or sponsor. The Tribunal finds however that the explanation does not outweigh the seriousness of the breach in failing to continue to work in the nominated occupation for the sponsor and in breach of the condition.

    Degree of hardship that may be caused

40. The Tribunal accepts that there may be a degree of hardship faced by anyone whose visa is cancelled and who must return to their country of origin.

41. There is however no information at all before the Tribunal as to how the applicant might be affected by this decision.

42. There is no information as to what arrangements the applicant intends to make to leave the country, although it is clear she will have an opportunity to tidy her affairs and make appropriate travel arrangements without being detained, and while remaining in the community to do so.

43. On balance, the Tribunal finds that absent any information concerning the applicant’s well-being or any anticipated hardship, there is no weight which could be given for this reason alone as to cancellation of the visa or the exercise of discretion not to do so.

    The circumstances giving rise to the cancellation

44. The applicant has explained her reasons as set out above and in her email for resigning from her employment.

45. The Tribunal finds that the resignation was initiated by the applicant herself. There is no information indicating if the applicant took any steps prior to resigning. It is impossible for the Tribunal to know whether the decision by the applicant was impulsive, or reached following a succession or series of incidents with the employer.

46. The Department sought information from the applicant to help understand the background to the termination from the employment.

47. The applicant provided very little information, other than her summary of the description of the workplace and environment. On its own, little weight could be given to such a description without more information and detail concerning the facts and circumstances and what steps were taken by the applicant, if any, prior to resigning.

48. In summary, the applicant gave the Department very little information to support the exercise of discretion in her favour when considering the circumstances prior to cancellation.

49. The Tribunal finds it is satisfied that in considering the reasons for terminating the employment provided by the applicant, that those reasons do not provide a reasonable basis for exercising the discretion not to cancel the visa.

    Past and present behaviour towards the Department

50. There is no information before the Tribunal to show that the applicant has not cooperated with the Department or acted in any way which is inconsistent with her obligations in that regard.

51. The Tribunal finds however that there being no issue about the applicant’s behaviour, this consideration alone does not outweigh the seriousness of the breach by the applicant and is not persuasive in terms of exercising any discretion not to cancel the visa.

    Consequential cancellations

52. There is no secondary or other visa holder who is affected by the decision to cancel the visa and no information before the Tribunal that is the case.

53. The applicant has made no submissions in this regard and the Tribunal does not see this circumstance as carrying any weight in terms of the exercise of discretion.

    Mandatory legal consequences such as detention

54. The Tribunal has already noted that in light of the cancellation, the applicant will have a reasonable opportunity to tidy her affairs and make arrangements to depart, whilst remaining in the community and to seek whatever advice or assistance she may require.

55. As a consequence, this consideration carries little weight for the Tribunal in terms of the exercise of discretion.

    International obligations

56. The Tribunal is not aware of any international treaty or obligation which might be impacted or any Australian obligation which might be affected by the exercise of discretion to cancel the visa.

57. As a result, the Tribunal does not attribute any weight to this factor in the exercise of its discretion.

    Any other relevant matters including ties in Australia

58. The Tribunal is not aware of any other facts, matters, or circumstances which might be relevant to the exercise of its discretion or which might be relied upon by the applicant. None have been presented other than what is contained in the applicant’s emails referred to above.

59. The Tribunal is not aware that the applicant has any family or other ties in Australia which might be affected by a decision to cancel the applicant’s visa.

60. The applicant has not provided any reasons as to why she would be unable to return to Indonesia to re-join her family, following the cancellation of her visa.

61. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled and that this is not an appropriate case for the exercise of discretion in favour of the applicant.

    DECISION

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

    Alan McMurran
    Member