Villanueva (Migration)

[2021] AATA 2215

Villanueva (Migration) [2021] AATA 2215 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andy Soriano Villanueva

CASE NUMBER:  2013882

HOME AFFAIRS REFERENCE(S):          BCC2020/715045

MEMBER:Vanessa Plain

DATE:11 June 2021

PLACE OF DECISION:  Melbourne

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 11 June 2021 at 4:14pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – left job after bullying and harassment – discretion to cancel visa – reasonable steps taken to obtain new job – first new employer promised to lodge documentation, but didn’t – second new employer has lodged employer nomination application – support for wife and children in home country – decision under review set aside

LEGISLATION  
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

CASES

Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168

Re Drake and MIEA (No 2) (1979) 2 ALD 634

Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 August 2020 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 breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 60 consecutive 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 appeared before the Tribunal on 11 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nick Tonini, director of Cooma Crash Repairs Pty Ltd the applicant’s current employer.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

6. 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

7. 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.

   Particulars of the ground for cancellation

8. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(b) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

   “8107

   (3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   […]

   (b)if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days;

9. The Delegate’s decision record of 25 August 2020 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is AMA GROUP SOLUTIONS PTY LTD (‘the sponsor’), whose nomination was approved on 27 October 2017. The sponsor has advised the Department that the visa holder ceased employment with them effective 31 January 2020. This appears to indicate the visa holder has not complied with condition 8107(3)(b) because the period during which they have ceased employment has exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling the visa under s116(1)(b) of the Act because it appears the visa holder has not complied with condition 8107.”

10. A Notice of Intention to Consider Cancellation dated 4 June 2020 (NOICC) was sent to the applicant at their nominated address.  No response was received by the Department from the applicant.

11. On 27 May 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 11 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. 

12. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Signed Contract of Employment (full time) with Cooma Crash Repairs Pty Ltd dated 4 June 2021 for the position of panelbeater

    (c)Comma Crash Repairs’ notification of approval as a standard business dated 3 May 2019 and effective until 3 May 2024.

    (d)Department of Home Affairs acknowledgment of employer nomination application received dated 10 June 2021 

    (e)Written submissions of the migration agent

    (f)Bridging visa E with working rights dated 6 February 2021 (application dated 13 January 2021)

    (g)A suite of documents evidencing two further places of employment and various job searches between January 2020 and December 2020

13. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

14. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

15. As at the hearing, the applicant stated in his oral evidence that he left his, AMA Group Solutions Pty Ltd on 31 January 2020.  He described a difficult working environment, where he was subjected to bullying and harassment. 

16. The applicant further stated that he started looking for work on 21 January 2020.  He did not find any work in February or March, but in April he was employed as a panebeater with Melton Bodyworks.  He stayed with this employer until 25 August 2020.  This employer repeatedly assured the applicant that he would lodge the appropriate documentation with the department, but never ultimately did.  The applicant stopped working for Melton Bodyworks because his working rights ceased when his visa was cancelled.  He searched for worked again and prepared an application for a bridging visa with working rights.  He obtained an interview with his current employer in January 2021 and starting working for Cooma Crash repairs when his bridging visa with working rights was approved in early 2021.  Cooma Crash Repairs has offered the applicant full time employment by way of contract of employment dated 4 June 2021, which the applicant accepted.  Cooma is an approved business and has lodged the appropriate employer nomination form with the Department. 

17. The applicant further stated that he received the NOICC, but that at that particular time of receipt, he did not pay the attention to the document that he should have, because he was preoccupied with the welling being of his wife and children in the his home country, because the COVID-19 pandemic was ravaging his country at that time and he was concerned about their welfare.   

18. Based on the applicant’s evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 31 January 2020.  The Tribunal further finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

19. For these reasons, the Tribunal finds 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

20. 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’.

21. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

    [1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

22. 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.

    Purpose of applicant’s travel to and stay in Australia

23. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for AMA Group Solutions Pty Ltd as a panel beater on a temporary basis.

24. The applicant was unfortunately placed in an untenable workplace environment at AMA Group Solutions. 

25. The Tribunal places significant weight upon the steps taken by the applicant to obtain alternative employment from January 2020 onwards, which is wholly supported by the suite of contemporaneous documents produced by him, as evidence of the genuine steps taken by the applicant to rectify the breach of his visa condition, as set out above in detail.

26. Importantly, in January 2021, the applicant obtained employment with Cooma Crash Repairs and this business has formally nominated the applicant for a position in the business.

27. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is employed by an Australian company which is an approved standard business sponsor, and which has applied to nominate the applicant for a position within the business.

28. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

29. The Tribunal finds that this purpose presently exists as the applicant has taken up employment with their proposed sponsor in January 2021.   

30. The Tribunal affords this consideration significant weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

31. The non compliance with a visa condition arose when the applicant ceased working with their sponsoring employer in January 2020.  The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of their visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business within that 60 day period.

32. However, the Tribunal is satisfied that the applicant took honest and reasonable steps to procure new employment as set out above and the fact the applicant has secured new employment approximately 6 months in advance of the Tribunal hearing means that the Tribunal places little weight upon the failure to procure employment within 60 day in these circumstances.   

33. The applicant informed the Tribunal that they have however, complied with all other visa conditions. The Tribunal has no reason not to accept that evidence.

34. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

35. The applicant ceased their employment at the sponsoring business in January 2020.  The Department did not proceed with the visa cancellation until August 2020. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

36. The Tribunal notes that in the applicant’s evidence they stated that they started looking for work with new employers in January 2020 and did in fact secure new employment between April and August 2020, but the applicant’s employer did not attend to lodging the appropriate nomination form with the Department. 

37. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant due to the unsafe work environment in which he found himself and it places weight upon the fact that the applicant took honest and reasonable steps to immediately rectify, and ultimately did rectify, the visa breach by the time of this decision. 

38. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

39. The Tribunal acknowledged the migration agent’s written submissions as to the hardship and difficulty the applicant will suffer if his visa remains cancelled.  The Tribunal asked the applicant whether he will suffer any hardship.  The applicant stated to the Tribunal that he will suffer hardship because his family are dependent upon him, in a financial sense. The applicant stated that his wife and 5 children live in the Philippines.

40. The Tribunal heard evidence from Mr Nick Tonini, the applicant’s employer.  The Tribunal places significant weight upon the evidence of Mr Tonini, who described the applicant’s work ethic, his concerns about being in an environment on his own in circumstances where his English is limited and his desire to progress his skills and provide for his family.  Mr Tonini described his personal experience employing immigrant workers and the extreme lack of working in the mechanical industry in Australia.  The Tribunal places significant weight upon Mr Tonini’s description of the applicant’s work ethic and the hardship that he has described if he were to have to return home in the circumstances.    

41. The Tribunal has taken into consideration the applicant’s evidence and the migration agent’s submissions addressing the hardship the applicant faces.  It particularly acknowledges that it is presently difficult to leave the country due to Covid.  

42. Balanced against any potential hardship to the applicant and their family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

43. The Tribunal acknowledges that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

44. The applicant did not respond to the NOICC, but the Tribunal has no reason to believe that the applicant read the NOICC in view of his explanation set out above. 

45. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

46. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

47. The applicant informed the Tribunal that his children do not live in Australia.  There is no evidence before the Tribunal of any other people being dependent upon his visa and as such would be consequentially cancelled under s140 of the Act.  

48. As there is no evidence before the Tribunal as to any consequential cancellations, the Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

49. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

50. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s proposed employer, Melbourne Collision Repair Centre is an employer who is approved as a standard business sponsor, but has yet to submit an approved business nomination form in relation to the applicant.

51. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

52. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

53. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

1. The Tribunal therefore gives this consideration some weight against cancelling the visa.

   Australia’s international obligations

2. 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).

3. The applicant informed the Tribunal that he does not have any children in Australia.  Therefore, the Tribunal is satisfied that Australia would not be in breach of its international obligations pursuant to any of these international agreements, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations.

4. The Tribunal does not give any weight for or against cancelling the visa for this consideration.

   The impact of any victims of family violence

5. There is no evidence before the Tribunal regarding this issue.

   Any other relevant matters

6. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

7. The Tribunal acknowledges that the applicant may experience difficulties in returning to the Philippines due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

8. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

9. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

10. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    Member

    
    
    

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration
[2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for
Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship

[2007] FMCA 1492 at [55].