1505440 (Migration)

[2016] AATA 3712

1505440 (Migration) [2016] AATA 3712 (29 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Godfrey Motenava

CASE NUMBER:  1505440

DIBP REFERENCE(S):  BCC2015/641312

MEMBER:Denise Connolly

DATE:29 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2016 at 4:13pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 April 2015 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, a citizen of Papua New Guinea, was granted the Subclass 457 visa on 23 May 2013, valid until 23 May 2017. He was sponsored by Phoenix Holdings (Aust) Pty Ltd (Phoenix) to work in the nominated occupation of Diesel Motor Mechanic.  Condition 8107 was attached to the visa. It requires, among other things, that the applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor. It also requires that, if the applicant ceases employment, that the period during which the applicant ceases employment must not exceed 90 consecutive days.

3. The Department became aware that the applicant was no longer employed by Phoenix when the sponsor wrote to the Department and advised that the applicant had ceased employment with the sponsor effective 15 May 2014.

4. The Department wrote to the applicant on 10 March 2015 issuing a Notice of Intention to Consider Cancellation (NOICC).  The applicant responded on 11 March 2015. He stated that when he was made redundant on 15 May 2014 he lost direction in a new country. He attempted to call the Department but he did not get through to an officer. He approached the Federal Member for Gladstone and was advised to just look for a job which he did, and he commenced employment at Rayment Excavations on 12 October 2014. This has caused him anxiety. He has a young daughter who is settled at school in Australia. He has nothing to go back to. He has employment and his family is settled here.

5. The delegate’s decision record, provided to the Tribunal by the applicant, records that the delegate found there was a breach of condition 8107 because the applicant had ceased employment for a period exceeding 90 days. The delegate cancelled the visa under s.116(1)(b) because she found the applicant had not complied with a condition imposed on his Subclass 457 visa and, having considered the relevant factors, formed the view it was appropriate to cancel the visa.

6. The applicant appeared before the Tribunal on 19 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr David Howard. The applicant’s church pastor also attended the hearing.   

7. 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

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

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition essentially requires the visa holder, among other things, to work in the occupation listed in the approved nomination unless certain circumstances apply, and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 23 May 2013. It was granted on the basis of an approved nomination for the position of Diesel Motor Mechanic with Phoenix.  At the hearing the applicant confirmed that he started working for Phoenix on 8 October 2013. He confirmed that he ceased that employment on 25 May 2014. The reasons he ceased working for Phoenix are discussed in more detail below.

11. The delegate’s records that the applicant had not secured employment in the nominated position since he ceased his employment with Phoenix. The applicant said that he started working with Rayment Excavations in October 2014. He believes Rayment may be a standard business sponsor, as they had 2 other sponsored employees but he is not sure if he was the subject of an approved nomination. He finished working for Rayment in April 2015.

12. On the basis of the delegate’s decision record and the oral evidence provided at the hearing the Tribunal finds the applicant ceased employment with his sponsor in May 2014. He claims he has undertaken employment with Rayment but acknowledged he did not commence that work until October 2014, more than 90 days after ceasing employment with Phoenix. The Tribunal finds the applicant has ceased employment for a period of more than 90 consecutive days. He is therefore in breach of condition 8107.

13. 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

14. 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’. At the hearing the Tribunal invited the applicant to give oral evidence in relation to all the factors relevant to the exercise of its discretion.

15. In relation to the purpose of his travel and stay in Australia, the applicant confirmed at the hearing that the Subclass 457 visa was granted to enable the applicant to work for the approved sponsor, Phoenix. He and his family came here in October 2013 for that purpose. The Tribunal accepts the applicant’s oral evidence that Phoenix suffered financial difficulties and he received a letter from the business advising that he was made redundant in May 2014. He could not provide the letter to the Tribunal because he cannot find it. He believes Phoenix has since ceased trading. He told the Tribunal that he then worked for Rayment from October 2014 undertaking the same work but he did not know whether he was the subject of an approved nomination. He stopped working for Rayment in April 2015 because they were reducing staff and cutting costs. He then secured employment at Calliope Cattle Company, based in regional Queensland. He provided to the Tribunal a letter from Calliope confirming his employment, and his manager attended the hearing to support his application. The applicant described his work at Calliope. He uses his mechanical and general skills, and helps maintain trucks, machinery and light vehicles used on the farm. He also helps with plumbing and tidying the workshop and station.

16. The Tribunal accepts the applicant’s evidence that his current purpose for staying in Australia is that he wishes to work as a tradesperson in regional Queensland. It accepts his oral evidence that he has contributed to the Australian economy and that he brought his family to Australia in October 2013 to offer his daughter a better life. It accepts that ultimately he wishes to remain in Australia permanently.

17. The Tribunal notes, as set out in the delegate’s decision record, that the applicant has not complied with condition 8107 because he ceased employment with his sponsor and the period during which he ceased the employment exceeded 90 days. It notes however that this appears to be the only condition that has been breached. There is no evidence before the Tribunal to suggest that the applicant has breached other visa conditions.

18. The Tribunal has considered the issue of consequential cancellations for the applicant’s wife and daughter and any hardship caused by a cancellation.  The Tribunal accepts the applicant’s evidence that he brought his wife and daughter to Australia in October 2013 and that the family will experience some hardship if the visa is cancelled and they have to return to PNG. He told the Tribunal he sacrificed everything in PNG to come to Australia and that he will have difficulty starting again. The Tribunal has considered the Convention on the Rights of the Child (CROC) and the applicant’s daughter’s best interests and has taken into account the impact any cancellation will have on her. The Tribunal accepts that the applicant’s daughter, aged 8, is settled at school in Australia however there is no evidence to suggest she will not be able to attend school in PNG if she were to return there. The Tribunal notes the applicant brought his child to Australia about 2½ years ago so she has spent only some of her life in Australia. The family migrated to Australia on temporary visas so there was no certainty that they would be granted permanent visas in Australia. The Tribunal is of the view that it is in the daughter’s best interests that she remain with her parents, whether that be in Australia or PNG. There is nothing to indicate the applicant’s daughter will be separated from her parents in the event of a visa cancellation. The Tribunal has also taken into account that the Subclass 457 visa is a temporary visa and, while the applicant has expressed a desire that he and his family remain in Australia permanently, this is not the purpose or outcome of the grant of Subclass 457 visas.

19. The Tribunal has taken into account the circumstances in which the ground of cancellation arose. It accepts that the applicant was made redundant by Phoenix and this lead to his breach of condition 8107. There is no evidence to suggest that his employment with Phoenix ceased because of any fault on the applicant’s part. The applicant provided a written statement in which he asserts that his employer Phoenix did not explain to him what he needed to do with respect to employment while he continued to hold a Subclass 457 visa. The Tribunal accepts that Phoenix did not explain what he needed to do to meet the conditions of a Subclass 457 visa. He has however subsequently received advice to make efforts to secure employment, which he has done, and the Tribunal adjourned making its decision for several months to allow the applicant and his employer an opportunity to secure an approved nomination.

20. The Tribunal notes the delegate’s finding that the applicant has been cooperative with the Department and provided information as requested, as he has with the Tribunal. The Tribunal has no concerns regarding the conduct of the applicant and takes this into account.

21. The Tribunal has considered the CROC as indicated above. There is no information before the Tribunal to indicate that any international obligations would be breached as a result of the cancellation.

22. With respect to other relevant factors, the applicant has provided written and oral evidence to the Tribunal confirming he is working for Calliope in regional Queensland undertaking various duties including some related to the maintenance of equipment and vehicles. At the hearing in October 2015 the Tribunal discussed with the applicant the issue of whether he is sponsored by an approved sponsor and whether he is the subject of an approved nomination, as it considers this factor to be relevant. The applicant told the Tribunal that he did not know whether his employer was a standard business sponsor. He was not able to provide evidence that he is the subject of an approved nomination. He indicated that he wanted further time for his employer to make the sponsorship and nomination applications as he did not think they had been made.  The Tribunal agreed to give the applicant further time to discuss those applications with his employer. The Tribunal also indicated that if his employer agreed to sponsor the applicant for a Subclass 457 visa, it would wait for a nomination application to be made and decided by the Department, as it considers a current approved nomination to be a relevant factor in the exercise of its discretion.  

23. After the hearing the applicant provided to the Tribunal a letter from his employer, Calliope, advising that it is willing to sponsor the applicant. It explains that the business has a considerable fleet requiring a full time mechanic and the applicant’s qualifications are required for its maintenance program. The business has had significant difficulties securing suitably qualified staff. The applicant provided a copy of the Department’s acknowledgement letter regarding the employer’s application for approval as a standard business sponsor.

24. The Tribunal wrote to the applicant noting that at the hearing the applicant had also agreed to provide evidence that the employer had applied for nomination approval of which the applicant is the subject. The Tribunal agreed to give the applicant further time to provide this evidence. He provided a copy of Calliope’s nomination application lodged on 26 November 2015 and an amended application lodged on 1 December 2015 (lodged in the sponsor’s trading name Twocalbal Pty Ltd ATF The ARL Wilson Trust). The Tribunal agreed to wait for those applications to be processed.

25. On 11 February 2016 the applicant provided to the Tribunal the decision record for the employer’s nomination application. It confirms that Calliope’s nomination application, of which the applicant is the nominated person, was refused on 27 January 2016 on the basis that Calliope had not undertaken labour market testing and did not meet s.140GBA. The information provided indicates the applicant is not the subject of an approved nomination. There is no evidence before the Tribunal to indicate the employer is appealing this decision.

26. The Tribunal accepts that the applicant is an active member of the Seventh Day Adventist Church and that he has the support of his pastor who has written to the Tribunal attesting to the applicant’s good character. His pastor also attended the hearing in support of the applicant. However it is of the view that the purpose of the Subclass 457 visa program is a significant consideration. The temporary visa is granted to fill a skill shortage in Australia. While the Tribunal accepts that the applicant is currently employed in Australia, and he is a valued employee, and he has the support of his church, he is not the subject of an approved nomination.

27. Having considered the evidence overall, the Tribunal accepts that the applicant ceased employment with his sponsor, Phoenix, through no fault of his own as he was made redundant. It accepts that he wishes to remain permanently in Australia with his family. It also accepts that the applicant and his family may suffer some hardship if they are required to go offshore and that he may have difficulties settling in PNG. However it notes that the purpose of the Subclass 457 visa program is to provide temporary visas for work in skilled occupations where there is a demand in Australia. It acknowledges that in some cases the Subclass 457 visa may lead to permanent residence where that demand continues, however this is not guaranteed. While the Tribunal understands the applicant's desire to remain here with his family permanently it is of the view that this is not a sound reason not to cancel his visa in all of the circumstances of his case. The Tribunal has considered the rights of the applicant’s daughter and the issue of consequential cancellations of the visas held by the applicant’s wife and daughter. It notes the daughter is 8 and has spent about 2½ years in Australia. The Tribunal is of the view that the most important consideration for the child is that she not be separated from her parents. There is no suggestion that a visa cancellation will result in the family being separated.  

28. The Tribunal accepts that the applicant has been cooperative with the Department and the Tribunal, and that he has made attempts to secure employment as a Diesel Motor Mechanic. It accepts that his current employer has made an application for a nomination approval however that application was refused. The consequence of this is that the applicant is not currently the subject of an approved nomination. The Tribunal is of the view the applicant has had a reasonable period of time since he ceased working for Phoenix in May 2014, 22 months, to secure employment with a standard business sponsor and to be the subject of an approved nomination. While he has made a genuine effort, he has not been able to do this. The Tribunal is concerned that, in these circumstances, the applicant will continue to not meet the requirements for holding a Subclass 457 visa. There is no evidence to indicate that any international obligations would be breached as a result of the cancellation.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Denise Connolly
    Member