YILDIRIM (Migration)

[2018] AATA 5273

YILDIRIM (Migration) [2018] AATA 5273 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zelal YILDIRIM

CASE NUMBER:  1823070

HOME AFFAIRS REFERENCE(S):           BCC2018/1638714

MEMBER:Jennifer Cripps Watts

DATE:28 November 2018

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 28 November 2018 at 8:37am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment – did not secure alternative sponsorship within 60 days – consideration of discretion – ceasing of employment beyond applicant's control – compliant with bridging visa conditions – psychological and emotional hardship – reasonable to provide opportunity to secure new nomination – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa (the 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 of the Act. 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 applied for Tribunal review on 9 August 2018, within time, and provided a copy of the delegate’s decision to cancel the visa.  On 10 October 2018 the matter was constituted to this member and, on 25 October 2018, the applicant was invited in writing to attend a scheduled hearing on 27 November 2018.

4. In the hearing invitation, it was requested that the applicant return the response to the hearing invitation within seven days.  Her migration agent responded on 26 October 2018 indicating that both she and the applicant would attend the hearing.

5. Also included in the Tribunal hearing invitation was a request that any additional documents or information the applicant wishes to rely on be provided to the Tribunal by 20 November 2018.  As no documents had been received by that date, the Tribunal sent a reminder letter to the applicant on 21 November 2018 again inviting her to provide additional documents to be considered on the review. 

6. On 26 November 2018, the day before the hearing, the applicant requested a postponement of her hearing on the basis that she is suffering stress and anxiety, an opinion provided in writing by a social worker.  The Tribunal considered the request.  The postponement was not granted and reasons were given in writing.  The applicant attended the hearing to give oral evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages for a short time at the beginning of the hearing.  However, the applicant said she felt uncomfortable with the interpreter.  He was dismissed and the hearing was conducted with the applicant and member speaking English to each other.  From time to time, questions and answers were clarified and occasionally the applicant asked for something to be explained.  The Tribunal is satisfied that the applicant participated fully in her hearing and that any language difficulties were minor and, in any event, resolved by the Tribunal repeating, rephrasing or explaining things to the applicant as required.

7. The applicant was represented in relation to the review by her registered migration agent, Samantha Vitale, Migration Agent Registration Number 0964981.

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). 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?

10. 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(3)(b) attached to the visa. This condition requires:

    (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 …

11. The standard business sponsor that nominated the applicant relating to the visa that is the subject of this review was Sheesh Pty Ltd (Sheesh).  The applicant’s Subclass 457 visa relating to the Sheesh nomination, to work in the occupation of Chef (ANZSCO 351311), was granted on 13 January 2017 for four years, to 13 January 2021.  The applicant first arrived onshore on 24 February 2017 and commenced employment with Sheesh soon after.  She gave evidence at the hearing that she took a holiday back to her home country in around August 2017 and said that when returning to Australia she realised in transit, in Malaysia, that she had lost her passport which necessitated her returning to Turkey to apply for a new one.  There is evidence on the Tribunal file that indicates the applicant was granted a new Turkish passport on 28 September 2017.  This passport problem had the effect of extending her time offshore for about a month longer than she intended to be away.  The applicant said that her sponsor, Sheesh, informed her that they could not wait for such a long period for her to return.  The applicant returned in around mid-October 2017.

12. The delegate notes in its decision that the Department received notification from Sheesh that the applicant ceased employment with them effective 23 October 2017.  The visa allowed the holder a period of 60 consecutive days after ceasing employment to resolve the matter, including by securing a new nomination with an approved sponsor, that is, until around the end of December 2017. 

13. The applicant was provided with procedural fairness by the delegate assessing her matter and was invited to comment on the ground for cancellation identified and to give reasons why her visa should not be cancelled.  On 26 July 2018, the delegate sent a Notification Of Intention to Consider Cancellation (NOICC) of the visa to the applicant informing her it appeared she was in breach of condition 8107.  This was, essentially, because her employment with the sponsor had ceased and she did not secure alternative sponsorship within 60 days as required.  Reasons were given and a copy or extract of condition 8107 was included.

14. The applicant was informed in the NOICC letter dated 26 July 2018 that she should state why she thought the ground for cancellation did not exist and why she thought the visa should not be cancelled.  The applicant was informed that she should provide her response within five (5) working days after receiving the NOICC letter and was put on notice that if she did not respond within the stated timeframe a decision would be made on the available information.  The applicant was also informed in the NOICC letter that she could request a five (5) day extension to respond to the NOICC.  The applicant was made aware in the letter what the consequences would be of a visa cancellation, including that she would be in Australia unlawfully unless she holds or is granted another visa and that this comes with serious consequences.  The applicant was provided with contact details for her response.

15. The applicant did not request an extension of time to provide a response to the NOICC and did not provide a response within the stated timeframe, or at all.  The delegate found that the ground for the cancellation arose and, as no claim was made or evidence provided that the applicant would suffer any hardship as a result of the cancellation, and the ground for cancelling the visa outweighed the grounds for not cancelling, the visa was cancelled and the applicant was notified of this on 3 August 2018 at 14:59 hours. 

16. The Tribunal has considered all relevant facts and matters and 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 visa should be cancelled.

    Consideration of discretion

17. 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’.

18. The purpose of granting a Subclass 457 visa is to enable a business to sponsor a skilled worker to fill a temporary shortage. 

19. The applicant was considered to be a credible witness who gave spontaneous and cogent evidence at the hearing.

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

20. The applicant gave evidence at the hearing that her ethnicity is Kurdish.  She was born in Turkey and lived there until she came to Australia holding a Subclass 457 visa in early 2017 to work in the occupation of Chef (ANZSCO 351311), on a temporary basis at Sheesh.  She gave evidence at the hearing that she had obtained qualifications and experience in hospitality before coming to Australia.  Although the applicant expressed some concern that her life in Turkey, if she was to return there, would not be pleasant based on past experiences, she has made no claim and provided no substantive evidence that would lead the Tribunal to form a view that she has a compelling need to remain in Australia for that or any other reason.

21. The Tribunal accepts that the applicant has been highly motivated to find another sponsor since she ceased employment with Sheesh on 23 October 2017.  Several nominations were refused before one was finally approved on 9 August 2018.  On 22 August 2018, the applicant was granted a Bridging Visa E with conditions 8207, 8506 and 8510 attached to it.  These mean, essentially, that she cannot study, must notify Immigration two days in advance of any change to her address and present a current passport if requested to do so.  There is no evidence before the Tribunal, and no reason to think, that the applicant has been non-compliant with these bridging visa conditions.  The Tribunal gives significant weight to these matters in favour of the applicant.

22. The applicant handed up a letter at the hearing indicating that a nomination was approved for a Subclass 482 visa relating to the applicant working in the same occupation (Chef ANZSCO 351311) for up to three years by Gippsland Lakes Barge Services, trading as Metung Hotel (Metung Hotel) on 9 August 2018, which is the same day she lodged her review application.

23. The applicant said at the hearing that she was granted a Bridging Visa E (BVE) after the Metung Hotel nomination was approved and the Tribunal confirmed this by referring to her Departmental movement record which indicates the BVE was granted on 22 August 2018.  The applicant’s BVE gives her full work rights and she says she commenced work at the Metung Hotel in regional Victoria around that time.  The applicant gave evidence at the hearing that the working and living conditions at the Metung Hotel were below standard and that she suffered discrimination in the workplace.  The Tribunal observed her to be visibly distressed when describing the workplace conditions.  She said eventually she felt she had no other option but to leave that employment, around three weeks before the hearing, which the Tribunal takes to mean around the beginning of November 2018.

24. The applicant said she is currently not working and suffering financial hardship.  She said she is currently living with a friend of her auntie’s in Sydney.  The Tribunal accepts this.

    The circumstances in which the ground of cancellation arose

25. The applicant told the Tribunal that it was her delayed time offshore from August to October 2017 that resulted in her losing her job with her first sponsor, Sheesh.  After a month’s holiday that commenced in August 2017, she said she was forced to return to Turkey when she was already en-route to Australia because she had lost her passport and needed to get a new one before continuing on to Australia to return to work.

26. The applicant, once realising in transit in Malaysia that she had lost her passport, could not, it is reasonable to think, enter Malaysia or Australia, so she returned to her home country, Turkey.  On that trip, she departed Australia on 23 August 2017 and returned on 18 October 2017.  Her employment was terminated by Sheesh effective 23 October 2017.  The Tribunal is satisfied that her delayed time offshore (nearly two months) when she was supposed to be on holiday for only one month, contributed to her employer terminating her employment and this was at least somewhat beyond her control.

    Extent of compliance with her visa conditions

27. There is no evidence before the Tribunal that indicates the applicant has been non-compliant with any other visa conditions relating to the 457 visa or any bridging visas she has held.

    Degree of hardship that may be caused

28. The Tribunal has considered whether financial, psychological, emotional or other hardship will be suffered by the applicant if her visa is cancelled.

29. The applicant appeared at the hearing in a very distressed state regarding her visa situation.  Her mental state is referred to by her social worker in a letter dated 25 November 2018, in which it is observed that the applicant:

    ‘…exhibited a range of symptoms that were consistent with Anxiety and Stress Disorder.  Some of Ms Yildirim’s symptoms include feeling anxious, social isolation, low self-esteem, having disturbed sleeping pattern, nightmares, constant headache, lack of concentration, poor memory, chest pain, difficult in breathing and panic attack.’

30. While claiming no medical expertise, the Tribunal observed the applicant to be very anxious at the hearing.  She was tearful and looked very stressed throughout almost the entire hearing.  She asked for, and was granted, two short adjournments to collect her thoughts.  Notwithstanding her obvious distress, she was quite determined to give her evidence and try to resolve her visa situation.  She did so not without struggle, which is to her credit.

31. The applicant has made dedicated attempts to secure a new nomination since she stopped working for Sheesh.  On the evidence, the Tribunal is of the view that the applicant will suffer significant psychological and emotional hardship if her visa is cancelled.  Weight is given to this.

    Past and present behaviour of the visa holder towards the Department

32. The applicant was not responsive to the Department’s NOICC.  However, there is no evidence before the Tribunal that the applicant has been compliant with her visa conditions and largely co-operative with the Department.

    Consequential cancellations

33. There is no evidence before the Tribunal that there would be consequential cancellations under s.140 of the Act if the applicant’s visa was cancelled.

    Mandatory legal consequences

34. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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.

35. The applicant is currently holding a Bridging Visa E.  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 her to remain in Australia.  In that event, she will be required to depart Australia.  Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

36. The applicant claims that her life in Turkey is adversely affected because of her Kurdish ethnicity.  She has provided no specific claims, nor any substantive evidence, that she has a well-founded fear of being persecuted on the basis of her ethnicity or for any other reason if she returned to Turkey.  However, on the basis of this fairly scant but important information regarding her Kurdish ethnicity, it is possible that she may choose to lodge a protection visa application.

    International obligations

37. Although she claims Kurdish ethnicity and would return to Turkey if her visa was cancelled, the applicant has not made any claim, nor has she provided any probative evidence that she has a valid or viable protection claim.

    Any other relevant matters

38. While the Tribunal does not suggest that a person who has had their Subclass 457 visa cancelled should be able to remain onshore indefinitely unless or until they find a new sponsor, it is the Tribunal’s view that it is reasonable in this applicant’s case to provide her with a further opportunity to secure a new nomination (for a Subclass 482) visa.  Her visa was approved for four years from January 2017 through to 2021.

39. She gave evidence at the hearing that she has lined up a company, the Waterfront Grill in Darling Harbour in Sydney, that is willing to nominate her in the same occupation, Chef, as her earlier nominations.  She said there is also a possibility of a sponsor in Tasmania.  The applicant’s visa, had it not been cancelled in circumstances where the Tribunal has found that the reason leading to the ceasing of employment was somewhat beyond her control, should, in the Tribunal’s view, be given an opportunity to pursue a new nomination. 

40. Having regard to the findings above, and in the specific circumstances of this case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

    DECISION

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

    Jennifer Cripps Watts
    Member