Williams (Migration)

[2018] AATA 5402

Williams (Migration) [2018] AATA 5402 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adam Williams

CASE NUMBER:  1711265

HOME AFFAIRS REFERENCE(S):           BCC2017/1043984

MEMBER:Antonio Dronjic

DATE:14 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2018 at 2:15pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – company director – sponsoring business ceased operations – applicant undertook activities at different business that normally attracts remuneration – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 359AA
Migration Regulations 1994, Schedule 8, Condition 8107, rr 1.03, 2.43, PIC 4013

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Re Drake (No. 2) (1978-1980) 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 18 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 did not work only in a position in the business of the sponsor or an associated entity of the sponsor. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background to the cancellation of the applicant’s visa

3. The decision record of 18 May 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 19 August 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 19 August 2019;

   ·The standard business sponsor who most recently nominated the applicant to work as an Arts Administrator or Manager was Twisted Kids Pty Ltd;

   ·The Delegate concluded that the applicant worked for two other businesses (Bickle Pty Ltd and Eskimo Ice Pty Ltd) that were not associated entities of the sponsoring business; that the applicant was appointed as a director of Bickle Pty Ltd on 30 November 2015 and was working as an owner/director of this business; and that the applicant received 81 direct payments from Eskimo Ice Pty Ltd between January 2016 and 23 August 2016;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued on 19 April 2017;

   ·The applicant responded to NOICC on 26 and 27 April 2017;

   ·On 18 May 2017, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal on 26 May 2017 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

5. On 21 September 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 13 November 2018.

6. The applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments.

7. 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 his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes that the visa holder must work only in a position in the business of the sponsor or an associated entity of the sponsor (8107 (3)(a)(ii)(B).

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

9. The applicant is 34 years of age national of United Kingdom. He holds Econometrics and Economics Degree. He has a long history of traveling to Australia as a holder of visitors’ and working holiday visas. He was first granted a Subclass 457 visa on 12 August 2014 based on the sponsorship and nomination made by an Australian business, Twisted Kids Pty Ltd. His second Subclass 457 visa was granted on 19 August 2015 for the period of four years based on the sponsorship and nomination from the same business. His nominated occupation was Arts Administrator or Manager.

10. He confirmed in his evidence that he received the Department’s notification of visa grant letter which contained explanation of the conditions imposed on his Subclass 457 visa.

11. He commenced employment at Twisted Kids Pty Ltd in June 2014. He worked six days per week and his annual salary was $85,000. During the first two years of employment at this business, his salary was paid into his bank account on a weekly basis. He stated that the company was de-registered in October 2016 and that he last worked for Twisted Kids Pty Ltd in January 2017.

12. When asked to explain how was possible to work until January 2017 for the company that was de-registered in October 2016, the applicant stated that, at the time, the business owner, Ms Dominique Cacioli, intended to re-register the business and he was helping her. He further stated that Twisted Kids Pty Ltd was never re-registered and it ceased its operations in October 2016.

13. I enquired as to whether he informed the Department that he ceased employment at the sponsoring business in January 2017. He answered that he did not. I asked if he commenced employment with another sponsoring business within 90 days from January 2017 and the applicant stated that he did not and that he made a mistake by not informing the Department of cessation of his employment.

14. I explained that by not commencing employment within 90 consecutive days from January 2017, he breached the condition 8107 that was imposed on his visa. Namely the condition 8107(3)(b) prescribed at the relevant time, that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

    The Tribunal’s Oral Invitation to Comment on or Respond to Information:  

15. In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    Based on the information obtained from the Department, the Twisted Kids Pty Ltd sponsorship approval was cancelled by the Department on 14 March 2017 and the business was barred from sponsoring another person for three years.

    Pursuant to s.116 (1)(g), the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder.

    Regulation 2.43 sets out the prescribed grounds for the visa cancellation.

    Pursuant to r.2.43(l)(iv), the prescribed grounds for visa cancellation is if the sponsor has been cancelled or barred under section 140M of the Act.

16. The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.

17. The applicant stated that he is not seeking additional time to provide his comments on or response to the information. He stated that he did not know that Twisted Kids Pty Ltd sponsorship approval was cancelled by the Department on 14 March 2017; that by that time, he ceased his employment at this business; that the business was de-registered and ceased its operations in October 2016 and that sponsorship cancellation was something out of his control. He stated that he only realised that the sponsoring business was de-registered after he received notification from the Department that his visa was cancelled.

18. The Tribunal raised additional issue with the applicant. The Tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116 (1)(g). 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)(l)(IV) is relevant. (The sponsor has been cancelled or barred under section 140M of the Act).

19. I noted that, according to the primary decision record submitted by the applicant with his review application to this Tribunal, the Delegate found that on 30 November 2015, the applicant was appointed a company director of Bickle Pty Ltd. The applicant confirmed this to be correct. He stated that the UK based company Twisted Kids Ltd was the sole shareholder of an Australian company Bickle Pty Ltd. He explained in his evidence that his mother, who lives in UK, had set up a Trust and appointed Twisted Kids Ltd (the business registered in UK) as a Trustee. She invested approximately $160,000 into Australian business Bickle Pty Ltd which operated a Jamaican restaurant in Melbourne.

20. The restaurant was opened in February 2015 and employed two chefs and two waiting staff. Ms Dominique Cacioli was managing day to day operations of the business until she was diagnosed with a serious medical illness. He gave evidence that, as a company director, he did sign some paperwork on behalf of Bickle Pty Ltd, including sponsorship applications made by this business. He stated that he never received wages from Bickle Pty Ltd nor did he take any profits from the business. He stated that, as a person of Jamaican background, he was ‘the face’ of this restaurant.

    The Tribunal’s Oral Invitation to Comment on or Respond to Information:  

21. In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    During the telephone interview the Department had with Ms Dominique Cacioli on 3 February 2017, she stated that you worked as a venue manager at Bickle Restaurant. She further stated during the interview that if the restaurant had a busy private function, you would do door hosting and that you would probably do 10-15 hours working at the restaurant.

22. The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.

23. The applicant stated that he is not seeking additional time to provide his comments on or response to the information. He stated that he does not know why Ms Dominique Cacioli stated that he worked at the restaurant as he was never paid by this business. He confirmed that he considered this restaurant to be his family business. He gave evidence that his mother decided to close this business in April 2017 and that she lost the money invested in the restaurant.

24. I explained to the applicant that ‘working’ in Australia means activity that normally attracts remuneration (r.1.03) and that de did not have to be paid to be considered working in Australia.

25. I noted that according to his evidence, he last worked in Australia in January 2017. I enquired as to how he supported himself during the past two years. He stated that his mother financially supported his stay in Australia.

26. I explained to the applicant that, based on the evidence before me, I am satisfied that the grounds for cancellation in s.116(1)(b) and 116(1)(g) are made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

27. I invited the applicant to state if there any matters he wants me to take into account in considering whether the visa should be cancelled.  He stated that he want to apologise for mistakes he made and does not wish to raise any other matters. He expressed his concerns that, because of visa cancellation, he will be banned from applying for Australian visas for the period of three years. I explained to the applicant that if the visa was cancelled as a result of breach of 8107 condition or because of the sponsorship cancellation he will not be the subject of a three years exclusion period (Public Interest Criteria (PIC) 4013).

28. 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

29. 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 grounds set out in s.116(1)(b) and s.116(1)(g). If satisfied that the ground or grounds 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?

30. 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, inter alia requires basis that the applicant works only in a position in the business of the sponsor or an associated entity of the sponsor. Based on the evidence before it, including the oral evidence from the applicant, I am satisfied that the applicant, despite not being paid wages by this business, worked at Bickle Pty ltd. I am satisfied that the applicant was appointed as a company director on 30 November 2015 and that he signed sponsorship applications made by this business in his capacity of a director. The applicant gave evidence that he considered Bickle Pty ltd to be his family business and that his mother invested approximately $160,000 in the restaurant operated by the business.

31. There is no evidence before me nor it was claimed by the applicant that Bickle Pty Ltd is an associated entity of the sponsoring business Twisted Kids Pty Ltd.

32. Based on the Departmental records, I am satisfied that Twisted Kids Pty Ltd sponsorship approval was cancelled by the Department on 14 March 2017. Accordingly, a ground prescribed in r.2.43 (1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (g) exists.

33. As neither of the grounds stated above 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

34. 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’.

35. 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 (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for 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 Affairs2006] 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]

36. 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.

    The purpose of the visa holder’s travel to and stay in Australia

37. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as an Arts Administrator or Manager for Twisted Kids Pty Ltd on a temporary basis. The applicant ceased his employment at the sponsoring business in January 2017 after the business ceased its operations and was de-registered in October 2016.

38. As of the day of this decision, the applicant did not secure sponsorship and nomination by another Australian business. Instead, together with his mother, he set up a new business in Australia (Bickle Pty ltd) which operated a Jamaican restaurant at Melbourne from February 2015 until April 2017. The applicant gave evidence that he has not been working in Australia since January 2017.

39. I observe that the Department did not proceed to cancel the applicant’s via until 18 May 2017 despite having the information that the sponsoring business was de-registered in October 2016.

40. The purpose of granting a subclass 457 was to enable an Australian business to sponsor a skilled worker if they 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. I find that this purpose no longer exists as the applicant ceased working for his sponsor in January 2017. I give significant weight to this consideration.

    The reason for and extent of the breach

41. The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his 457 visa.

42. The applicant was appointed a director of Bickle Pty Ltd on 30 November 2015. The Jamaican restaurant operated by Bickle Pty Ltd opened in February 2015. I accept the applicant’s evidence that he was not paid wages by this business nor he took profits from it. However, I do not accept that the applicant did not undertake activities at the restaurant that normally attract remuneration in Australia.

43. The applicant gave evidence that he did not inform the Department that he ceased employment at Twisted Kids Pty Ltd in January 2017. He further stated that he did not commence employment with another sponsoring business within 90 days from January 2017. This amounts to another breach of Condition 8107 that was imposed on his visa. (The condition 8107(3)(b)).

1. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after almost two years since the original cessation of employment represents a significant breach of condition 8107.

   Circumstances in which ground of cancellation arose

2. Whilst I accept that the circumstances in which the ground for cancellation arose under s.116(1)(g) (prescribed grounds under r.2.43) are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased. However, I find that the circumstances in which the ground for cancellation arose under s.116(1)(b) ( breach of 8107 condition) were brought about by the applicant, and were not beyond his control.

   Past and present conduct of the visa holder towards the Department

3. As I previously found, the applicant did not inform the Department that he ceased employment at Twisted Kids Pty Ltd in January 2107. He committed multiple breaches of 8107 condition that he knew was imposed on his visa. I give significant weight to this consideration.

   Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

4. I accept that leaving Australia may involve some hardship to the applicant. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which created no expectation of remaining in Australia permanently.

5. As I explained to the applicant at the hearing, 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.

6. I am satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

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

7. 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 him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

8. The Tribunal is mindful that Section 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 section 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.

   Whether there would be consequential cancellations under s.140

9. There are no consequential visa cancellations.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

10. 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).  

11. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

12. There is no evidence before the Tribunal regarding this matter.

13. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Antonio Dronjic
    Member