1508168 (Migration)

[2015] AATA 3659

1508168 (Migration) [2015] AATA 3659 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dino Cinco
Ms Josie Cinco
Mr Khobe Christian Cinco
Mr Kerby Cinco
Mr Koji Kenjie Cinco
Ms Kassandra April Cinco

CASE NUMBER:  1508168

DIBP REFERENCE(S):  BCC2015/1097289

MEMBER:Marten Kennedy

DATE:17 November 2015

PLACE OF DECISION:  Adelaide

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

The Tribunal refers this matter to the Minister for Immigration and Border Protection for consideration of the exercise of the Minister’s powers in section 351 of the Act to substitute a decision that is more favourable to the applicant.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 November 2015 at 3:55pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 5 June 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The remaining review applicant’s visas were cancelled by operation of law as a consequence of the first-named review applicant’s visa being cancelled.  There is therefore no reviewable decision in respect of the second to sixth-named visa applicants, and the Tribunal has no jurisdiction in respect of them.  Their circumstances however have been taken into account in this review.

3. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had breached a condition of his visa requiring that if he ceases his employment, the period during which he has ceased employment does not exceed 90 days (condition 8107(3)(b)).

4. According to the delegate, the applicant’s sponsor and employer, Fluor Australia Pty Ltd, notified the Department that the applicant’s employment ceased on 19 December 2014.  According to the Department, there was at the time of the cancellation decision no record of the applicant being the subject of a further application for approval of a nominated position by a sponsor.  The applicant does not dispute that the ground for cancellation is established or any of those essential facts. I will consider the particular circumstances in which the ground arose later in these reasons.

5. I therefore reach the same findings as were reached by the delegate in this regard.  I find that the applicant has breached condition 8107(3)(b), which was a condition of his visa.  The applicant did not contend that the ground was not established but asks that I take into account a range of circumstances and decline to cancel the visa in his circumstances.

   Consideration of discretion and recommendation for Ministerial intervention

6. 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’.

7. As outlined in the reasons below, I have considered carefully the factors outlined in the Department’s policy, and all matters otherwise known to me.  I consider there are significant compassionate circumstances present in this matter, and evidence that the applicant is required by his current employer who is willing to sponsor him for a further temporary work visa.

8. However, the practical reality of the applicant’s situation is that his subclass 457 visa was a temporary work visa that would have expired in any event, but for the cancellation.  I have no power to extend the term of that visa were I to effectively reinstate it.  Essentially, an exercise of the discretion so as not to cancel the visa would restore to the applicant a visa that has already ceased, and it would not change the reality of his migration status in Australia.

9. I have considered carefully whether I am able to effectively restore the applicant and his family to the position they would have been in but for the visa cancellation, in terms of applying for a further subclass 457 visa onshore supported by the new employer.  Having regard to the applicant’s current employment situation and the compassionate circumstances affecting his family, if I could do so I would.

10. However, I have concluded on careful examination of the Regulations that my exercise of the discretion so as not to cancel the visa would not have that effect.  The applicant would still face insurmountable problems for an onshore subclass 457 visa application in terms of the time of application requirements of cl.457.211 of Schedule 2 of the Regulations and Schedule 3 criterion 3004(f) (see Quan v MIMAC [2013] FCCA 1254).

11. In this case, I consider it appropriate to affirm the decision to cancel the visa in the exercise of my discretion, but to recommend that the Minister exercise his personal discretion to substitute a more favourable decision to that of the Tribunal, and to refer the matter to the Minister’s office for consideration.

12. As to the purpose of the visa holder’s travel and stay in Australia, the applicant explained that he had worked for his former employer Fluor as an Industrial Engineer.  The applicant explained that he had been working on a project in Roma for Santos that was completed.  It was his third project with the company. He had worked with Fluor on projects in Saudi Arabia and was recruited for the project in Australia. The applicant explained the company was expecting to secure another project after the Roma project, but was unexpectedly unsuccessful in its bid.  He was made redundant, being the last of the foreign workers to be let go.  This lead to the breach of the visa condition.  The applicant had difficulty finding a new position in light of the general downturn in the mining sector of the economy.

13. I take this evidence into account in understanding the circumstances in which the ground for cancellation arose.  The circumstances can readily be characterised as circumstances beyond the applicant’s control.  No adverse connotation can be attached to any aspect of the applicant’s conduct in this regard in my view.  Nonetheless, it remains the case that the specific purpose of the applicant’s subclass 457 visa ceased to exist when his sponsor no longer required his skills.

14. Returning to the purpose of the applicant’s presence in Australia, the applicant has provided the Tribunal with correspondence from his current employer, Lai Switchboards Australia.  The first letter of 28 October 2015 explains the applicant is working fulltime and is conscientious and punctual.  The company says it looks forward to him being a long term employee.  The letter of 10 November 2015, provided in response to my request for more specific information about the company’s intentions towards the applicant, indicates that the applicant is employed as an Electrical Trades Assistant, and the company is happy to nominate the applicant for sponsorship as he is a valuable member of the team.

15. The applicant told me at hearing that he is working as an Industrial Engineer, and more specifically as an electrical quality control inspector. The applicant believed the employer to be an approved business sponsor, as he was aware there were a number of other workers holding subclass 457 visas.  The employer is involved in manufacturing and not mining.  The applicant mentioned that his last contact with his former employer, Fluor, was also positive.  They suggested that the applicant ‘hang in there’ as other projects may be in the pipeline.

16. In taking into account the purpose of the applicant’s travel to and stay in Australia, I am conscious that his 457 visa was granted to him to fill a skill shortage for a specified employer.  His redundancy indicates that specific purpose is no longer being served.  However, I also take into account that the applicant is now a valued skilled employee with another employer.  I do not know if nomination of the of the applicant’s position with Lai Switchboards could be approved under the 457 scheme, or whether an alternative position could be identified that could be approved.  Nonetheless, I take note of the fact, and draw to the Minister’s attention, that the applicant is currently employed using similar skills, albeit with a different employer. 

17. As to the degree of hardship that may be caused (financial, psychological, emotional or other hardship), the applicant described the consequences of the visa cancellation as catastrophic.  He explained that his family had been affected by recent typhoons in the Philippines and had lost their home.  The applicant told me that in December last year his house had been flooded again.  The applicant’s children are afraid of returning to the Philippines for these reasons. 

18. I also understand from the applicant and other witnesses at the hearing that members of the applicant’s extended family are resident in Australia.

19. The applicant said he does not have work in the Philippines, and now his wife has found work with Bupa in Australia, and does not consider she would be likely to find work in the Philippines.

20. As for his children, the applicant told me they had difficulty adjusting to life in Australia but had now adjusted well and are attending school.  The children had joined him in Australia after he had commenced with his former employer.  At the time the applicant’s family joined him he was working for Fluor and his visa had not been cancelled.  The applicant told me his eldest child is in year 10, his second in year 8, his third in year 5 and his youngest in year 1.

21. I accept that return to the Philippines would result in significant financial hardship and emotional disruption to the entire family.  I take this into account in respect of the applicant and also whether there would be consequential cancellations under s.140

22. It was not contended that Australia would breach its international obligations as a result of the cancellation.

23. The applicant’s past and present conduct towards the immigration Department is not in issue.  The Department has acknowledged that the applicant has been cooperative and produced all information requested of him. 

24. As mentioned above, I consider that there are compassionate circumstances affecting the applicant and his family, and it appears that the applicant’s skills are required by his current employer.  In combination with the absence of any adverse features as to the circumstance sin which the ground for cancellation arose or the applicant’s conduct, I would ordinarily decline to cancel the visa.

25. However, as explained above, setting aside the visa cancellation would serve no purpose and would not alleviate any of the potential hardships to be faced by the family or permit the applicant to apply for a further subclass 57 visa onshore with the support of his new employer.  This is because the 457 visa has already ceased.

26. Taking all those matters into account, I do not consider it an appropriate exercise of the discretion to effectively reinstate a visa that has ceased, where the visa was cancelled because its purpose in filling a skill shortfall for the nominating employer had ceased to exist. I am unable to identify any practical purpose to be served for the applicant and his family in doing so.

27. I will therefore affirm the decision under review to cancel the visa.

28. I consider however that the compassionate circumstances outlined to me, and the value with which the applicant is held by his current employer may be amenable to a resolution outside the confines of the Regulations.  In my view, this matter is an appropriate matter to refer to the Minister to consider for the favourable exercise of his public interest powers.  I refer the matter because of the compassionate circumstances affecting the applicant’s family members, the applicant’s apparent value to his current employer,  and the employer’s expressed willingness to support the applicant for a subclass 457 visa.  I am conscious that in these circumstances the Minister retains personal and non-compellable discretion to grant the applicant a substantive visa of a different kind to permit an onshore application for a subclass 457 visa.  This will be a matter for the Minister.

    DECISION

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

    The Tribunal has no jurisdiction with respect to the other applicants.

    The Tribunal refers this matter to the Minister for Immigration and Border Protection for consideration of the exercise of the Minister’s powers in section 351 of the Act to substitute a decision that is more favourable to the applicant.

    Marten Kennedy
    Member