Taroda Nakasone (Migration)

[2017] AATA 1186

Taroda Nakasone (Migration) [2017] AATA 1186 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Heloisa Midori Taroda Nakasone

CASE NUMBER:  1619727

DIBP REFERENCE(S):  BCC2016/3415481

MEMBER:Denise Connolly

DATE:3 July 2017

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 03 July 2017 at 9:00am

CATCHWORDS

Migration – Cancellation – Subclass 457 (Temporary Work (Skilled)) visa – Ceased employment exceeding 90 days – Employer closed business – Terminated employment – Circumstances beyond her control – Currently subject of approved nomination – Some hardship to all parties if visa cancelled

LEGISLATION

Migration Act 1958, ss 116
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 14 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2.    The applicant has provided to the Tribunal a copy of the delegate’s notification of cancellation. It records that the applicant was sponsored by Braza Trading Pty Ltd. She was granted the Subclass 457 visa on 30 September 2014 to work in the occupation Café or Restaurant Manager.  Condition 8107 was attached to the visa. It requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Department was informed that the applicant had ceased employment with the sponsor, effective 16 June 2016.

3.    On 27 October 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant’s representative responded and explained the circumstances leading to the applicant ceasing employment with the sponsor. The applicant began working for Braza Pty Ltd, her former sponsor, in December 2010 when she was the holder of a Student visa. She worked her way up to become the restaurant manager. The sponsorship was approved on 30 September 2014 for a 4 year period. On 9 April 2016 Braza owners told the applicant and other staff that they were closing down the restaurant. The applicant had 9 weeks’ accumulated leave which she took until 26 May 2016. The sponsor was giving her indications that they might relocate her to their Manly premises. She indicated to them that she would also be happy to work in their Miranda store. she did not want to breach her visa conditions or lose her visa. On 26 May 2016 the sponsor informed the applicant that he would need to terminate her employment. On 16 June 2016, after the 3 weeks’ notice, she ceased her employment. She received a text message from the owner saying that they were going to inform the Department on 13 July 2016. The applicant was actively looking for new sponsorship in the same occupation. At the time of writing a new nomination application had been lodged for the same occupation with a new sponsor, Limani Pty Ltd. The applicant thought she had until 13 October 2016 to secure sponsorship. Her new employer Limani Seafood Restaurant had not sponsored anyone before and needed to ensure all their paperwork was ready for the relevant applications. The circumstances leading to the breach were due to factors beyond her control. She was willing to continue to work for her former sponsor but they terminated her employment. She explained that her new sponsor runs a busy restaurant on the northern beaches and has been in business for over 10 years. They need someone with the applicant’s experience. The applicant stated that she had every intention to abide by the visa conditions.

4. On 14 November 2016 the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 90 days and therefore breached condition 8107.

5.    The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal on 16 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Karren-Lea Kritsotakis, the applicant’s current employer and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages, although she gave most of her evidence in English.

7.    The applicant was represented in relation to the review by her registered migration agent who was also present at the hearing.

8.    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

9. 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), that is, the Minister or the Tribunal 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. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination and, unless subclause (3A) applies, to only work in a position in the business of the sponsor, or an associated entity of the sponsor. Also condition 8107(3)(b) requires that if the applicant ceases employment , the period during which she ceases must not exceed 90 consecutive days. 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.

1. The applicant was granted the Subclass 457 visa on 30 September 2014 on the basis of Braza Pty Ltd’s approved nomination, in the occupation Café or Restaurant Manager. Condition 8107 was attached to the visa.

2. For reasons discussed below the applicant ceased her employment with the sponsor in June 2016. She did not return to that employment. On the evidence before it the Tribunal is satisfied that the applicant ceased to her employment with the sponsor and the period during which she ceased employment exceeds 90 consecutive days. In these circumstances the Tribunal finds that the applicant has breached condition 8107(3)(a).

3. For these reasons, 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 power to cancel the visa should be exercised.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

2. Prior to the hearing the applicant’s representative provided to the Tribunal evidence confirming that the applicant is now the subject of an approved nomination that has not ceased, and working for the sponsor. Her new sponsor, Limani Pty Ltd, is an approved standard business sponsor. On 22 December 2016 Limani’s nomination application for the position Cafe or Restaurant Manager, of which the applicant is the subject, was approved.

3. The Tribunal has first considered the applicant’s purpose for remaining in Australia. She now wishes to remain in Australia to work in sponsored skilled employment, in the nominated occupation Café or Restaurant Manager for her employer, and approved standard business sponsor. The Tribunal is satisfied she is the subject of an approved nomination. The Tribunal is also satisfied, on the basis of her sponsor’s evidence, that the business had difficulty finding a suitable manager. Her sponsor has given oral evidence that she has been working with the business, and making a valued contribution. She is reliable, punctual, professional, customer focused and trustworthy. The applicant also told the Tribunal that she has been working hard in Australia for eight years and she values the Australian way of life. She also undertakes voluntary community work for the Salvation Army. The Tribunal gives these factors significant weight in favour of not cancelling the visa.

4. Regarding her compliance with visa conditions it appears to the Tribunal that this is the only condition for which she has not complied. The Tribunal notes that the applicant was told by her former sponsor that her job was no longer available. On the basis of her current sponsorship and employment in a position for which there is an approved nomination, the Tribunal satisfied the applicant did everything she could to secure sponsorship in skilled employment as soon as she realised her sponsored employment with Braza ceased. While it accepts that she ceased employment with her former sponsor in June 2016 for a period exceeding 90 days it is satisfied she took every action she called to avoid breaching condition 8107. She commenced working for her new sponsor in December 2016.

5. With respect to any hardship a cancellation may cause, the Tribunal is satisfied that the applicant’s new sponsor, Limani, has invested in securing standard business sponsorship and an approved nomination for the applicant. The Tribunal is satisfied her new sponsor would suffer some hardship if the visa was cancelled and they had to find another restaurant manager. The Tribunal is also satisfied that the applicant incurred some debt while she was looking for suitable employment and that she currently has a credit card debt of about $3000. It accepts that she would suffer some financial hardship if the visa is cancelled. It also accepts that she would suffer some emotional hardship because she has worked hard to secure sponsored employment.

6. The delegate has not indicated there are any concerns regarding the applicant’s past or present conduct towards the Department. The Tribunal considers the applicant to be an honest witness with a genuine intention to remain in Australia for the purpose for which a Subclass 457 visa is granted.

7. Regarding the circumstances in which the ground for cancellation arose, the Tribunal is satisfied on the basis of the applicant’s oral and written evidence that she was informed in about April 2016 that her sponsor would be closing the business in which she worked. It accepts that her former sponsor told her to take all of her 9 weeks’ leave entitlements and that they were intending to transfer her to their new restaurant in Manly. She took her leave accordingly from 9 April 2016. However on 26 May 2016 the business owner rang and told her that they were terminating her employment. The Tribunal is satisfied that the circumstances in which the ground for cancellation arose were outside her control. It is also satisfied that the applicant took every action to try and avoid the ground for cancellation arising. She was mindful that she needed to be in sponsored skilled employment and ultimately she was successful in securing such a position.

8. The Tribunal is satisfied the applicant holds a bridging visa so, if the visa is cancelled, she will not be detained, so long as she departs Australia before it expires. The applicant gave no evidence indicating that international obligations would be breached as the result of a cancellation. There is a consequential cancellation because the applicant’s partner, Mauricio Nakasone, is her dependent.

9. In relation to any other relevant matters, the Tribunal is persuaded by Mrs Kritsotakis’ oral evidence that the business has come to rely on the applicant’s skills and commitment. Mrs Kritsotakis gave strong evidence regarding the applicant’s reliability, punctuality, professionalism, trustworthiness and customer focus. She said she also has very good working relationships with the other staff members. She indicated that it would be very difficult for the business to find someone of the applicant’s calibre. There would be costs involved and her husband, aged 65, would have to return to working very long hours.

10. Overall the Tribunal is satisfied that the applicant is now working in sponsored employment, as the subject of an approved nomination, meeting the purpose for which a Subclass 457 visa is cancelled. The Tribunal is satisfied that both the applicant and her new employer would suffer some hardship if the visa is now cancelled. When her employment with her former sponsor ended, through no fault of her own, she did everything she could to secure sponsored skilled employment as soon as possible. She did this by December 2016. It gives these factors significant weight. It also gives weight to the fact that this is the only concern regarding the applicant’s visa compliance and her conduct towards the Department. It accepts that the applicant has been making a positive contribution to the sponsor’s business and that it would be difficult for the sponsor to replace her. The Tribunal also notes that would be a consequential cancellation. These factors also weigh in favour of not cancelling the visa.

11. The Tribunal is of the view when weighing up all the circumstances that the correct and preferable decision is to not cancel the visa. While the Tribunal accepts that the Subclass 457 visa is only intended to be a temporary visa, that the applicant has a bridging visa which would prevent her detention if the visa is cancelled, and that there are no international obligations that may be breached as a result of cancellation, the Tribunal is not satisfied these factors, along with her breach of condition 8107, are sufficient to warrant cancelling the visa in the applicant’s circumstances.

12. Having carefully considered all the evidence and weighed up all of the relevant factors the Tribunal is of the view that the circumstances in favour of cancelling the visa are outweighed by those in favour of not cancelling the visa. The Tribunal has concluded that the visa should not be cancelled.

DECISION

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

Denise Connolly
Member