1505462 (Migration)

[2015] AATA 3000

1505462 (Migration) [2015] AATA 3000 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fred Mayos Allay

CASE NUMBER:  1505462

DIBP REFERENCE(S):  BCC2015/667182

MEMBER:Carolyn Wilson

DATE:2 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 02 July 2015 at 11:14am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa. 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 22 June 2015 to give evidence and present arguments The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

4. 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

5. 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?

6. 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 was attached to the applicant’s visa. This condition requires that if the holder ceases employment, the period during which the holder ceased employment must not exceed 90 consecutive days.

7. The applicant’s sponsoring employer, Plum Plain Projects Pty Ltd, advised the Department on 30 May 2014 that the applicant had ceased working for them on 10 May 2014.  The applicant does not deny that he ceased working for his sponsor, but states they terminated his employment because they told him they in fact needed a Hydraulic Mechanic, and not an Automotive Electrician.  He also says he stopped working for the sponsor earlier than 10 May and that his last day with them was 25 April 2014.  The applicant agrees he was out of work after this time, until securing part-time employment in an unskilled position in a nursery around 15 August 2014.

8. The Tribunal finds the applicant ceased working for his sponsor by 10 May 2014, did not work at all until at least 15 August 2014, and has not worked for an approved sponsor since May 2014.

9. The Tribunal finds the applicant breached condition 8107 in ceasing employment for a period exceeding 90 days. 

10. 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

11. 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’.

12. The Subclass 457 visa was granted for purpose of the applicant’s travel and stay in Australia to work temporarily for the nominating employer.  The applicant claims he worked for the original sponsoring employer for about a month when he first came to Australia in 2012.  The applicant says that employer terminated his employment because he did not have a heavy vehicle driver’s licence. The applicant returned to the Philippines until he found a second employer to sponsor him, that is, Plum Plain Projects Pty Ltd.  However, he says he worked for this employer for only 5 days.  He says they ceased his employment because the employer decided the position required different skills and qualifications to that which the applicant possessed.

13. The applicant has not been sponsored by any other employer since he ceased working for Plum Plain Projects Pty Ltd in April or May 2014 after working for them for only one week.  The Tribunal gives significant weight to the brevity of time for which the applicant worked for both sponsors, and his failure to secure another sponsor.

14. The Tribunal accepts the applicant has tried to secure skilled work in Australia.  The applicant claimed at hearing to have an offer for an interview in Melbourne, but was waiting for the outcome of this decision before attending any interview. 

15. The applicant asserts he will face considerable hardship if the visa is cancelled.  His purpose in coming to Australia was to support his four children, who are all still dependent on him and currently at school or in higher education.  He claims also to have debts in the Philippines of about $10,000.  

16. The Tribunal is not aware of any claims or circumstances that would result in any international obligations being breached as a result of the cancellation.  The Tribunal acknowledges the cancellation of the visa means the applicant will need to depart Australia within a set time period to avoid becoming unlawful. 

17. The Tribunal has taken into account the applicant’s conduct towards the Department.  Whilst there is no evidence of any deliberate attempts to provide misleading or incorrect information, the applicant has also not been forthcoming in approaching the Department after his second nominating sponsor ceased his employment.

18. The Tribunal has considered the hardship that will be caused to the applicant if the visa remains cancelled.  However, the Tribunal gives greater weight to the purpose of the visa, that is, to work temporarily under the 457 program for an approved sponsor in his nominated skilled occupation.  The applicant entered Australia as the holder of this 457 visa in April 2012.  Since that time he has worked only one month for the first sponsor and one week for the second sponsor.  The applicant has not fulfilled the purpose of his 457 visa and the Tribunal finds this to be a significant factor that outweighs the hardship caused by the cancellation.

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

    DECISION

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

    Carolyn Wilson
    Member