1508704 (Migration)

[2016] AATA 3021

1508704 (Migration) [2016] AATA 3021 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Isaac Kwadwo Andoh

CASE NUMBER:  1508704

DIBP REFERENCE(S):  BCC2015/1378640

MEMBER:Rania Skaros

DATE:15 January 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 15 January 2016 at 10:59am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 June 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 on the basis that the applicant had not complied with condition 8107 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 23 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) 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. Condition 8107(3) requires the following:

   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):

   (a)      the holder:

   (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii)      unless the circumstances in subclause (3A) apply

   (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

7. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

8. The applicant was sponsored for a 457 Visa by Edge contracting Pty Ltd. The nomination in respect of the applicant was approved on 22 February 2012 in the occupation of Diesel Motor Mechanic (ANZSCO 321212).

9. On 23 December 2014 the Department received information from the sponsor indicating that the applicant had ceased employment with them effective 11 December 2014.

10. In response to the Department’s notice of intention to cancelling the visa, the applicant submitted that he had not breach his visa conditions and that it was his employer that terminated his employment after he got injured at work. At the hearing the Tribunal explained to the applicant that the issue is not who terminated the employment but whether he had ceased employment with his sponsoring employer and whether more than 90 days had passed since he ceased employment. The applicant acknowledged that he had ceased employment with Edge contracting Pty Ltd in December 2014 after being requested to sign resignation documents.

11. The applicant gave evidence that he does not have a new nomination and stated that he tried hard to get another employer to sponsor him but could not do so within the 90 days.

12. On the evidence before it, the Tribunal finds that the applicant ceased employment with his sponsoring employer and the period during which the applicant ceased employment exceeded 90 consecutive days.

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’.

15. The Tribunal considers that the purpose of the applicant’s travel and stay in Australia as the holder of a 457 visa is to work for an approved sponsor in a skilled occupation for which he has been nominated. At the hearing the Tribunal noted that there is no evidence before it to indicate that, since ceasing employment in December 2014, the applicant had become the subject of another approved nomination. The Tribunal explained to the applicant its concern that he may not be able to fulfil the purpose of his stay in Australia as the holder of a 457 visa. The applicant stated that he had issues with his employer and they made him sign a letter of resignation after he got injured at work. He said that when he came to Australia he worked very hard for the company. He said that he was unfairly dismissed. He said that has been at home since the injury though he has had some casual employment and has been trying hard to secure another nomination.

16. The Tribunal has considered the applicant’s claim that he was mistreated by his former employer after his injury and was unfairly dismissed from his employment, and while it is sympathetic to the applicant in the circumstances, as explained to him at the hearing, it was open for him to seek legal advice regarding his rights and whether any employment obligations in relation to him had been breached.

17. The Tribunal accepts that the applicant has made efforts to find another employer to nominate him, however, to date there is no evidence before the Tribunal to indicate that the applicant is the subject of an approved nomination and there is limited evidence to suggest that he will be the subject of one in the near future. In the circumstances, the Tribunal considers that the applicant would not be able to fulfil the purpose of his stay in Australia as the holder of a 457 visa or comply with the conditions of that visa.

18. The applicant told the Tribunal that he left a good job in Ghana and spent a lot of money to come to Australia to work. He said he will struggle if he returns to Ghana. In his written submissions to the Department he indicated that he had to financially support his four children and his mother. He indicated that his children and mother would be significantly affected if his visa is cancelled. He stated that has been in Australia for some time and has been working and paying taxes and contributing to the Australian community.

19. At the hearing the applicant provided a number of documents relating to his work injury and claim for compensation. He gave evidence that he received an amount of $35,000 in compensation.

20. The Tribunal accepts that the applicant resigned from his job in Ghana and incurred expenses in securing a visa to travel and work in Australia. However, the Tribunal considers that it was the applicant’s choice to do this and considers that he would have been aware that the subclass 457 visa is a temporary visa granted for the purpose of working in Australia for a temporary period. The Tribunal further notes that the applicant has now received $35,000 in compensation and considers that this amount will overcome the issues in relation to his financial obligations to his family.

21. The Tribunal accepts that the applicant has been residing in Australia for almost four years, has worked and paid taxes. However, the applicant residence was as a holder of a temporary visa and most people that work in Australia are expected to pay taxes. No evidence has been provided in relation to the nature of the applicant’s contribution to the community as claimed.

22. The Tribunal considers that the applicant has generally been cooperative with the Department.

23. The Tribunal accepts that as a consequence of the cancellation the applicant may become an unlawful citizen and maybe subject to detention should he decide not depart Australia or is not granted another visa. The Tribunal also acknowledges that the applicant may be subject to s.48 of the Act and may have limited options for making an application onshore. However, the Tribunal considers these to be the intended consequences of the applicable legislation in this case.

24. The Tribunal has also considered the applicant’s claim that he does not want to return to Ghana because in his clan he has to follow a particular path. At the hearing the applicant stated that his senior brother is currently the chief of the town and that he would have to take over this role which involves too many responsibilities, such as offerings of sheep and goats. He said that he would be responsible for towing the line of the other chiefs and does not want to be a chief. While the Tribunal acknowledges that the applicant would prefer not to return to Ghana for the reasons given, there is nothing in his claims to suggest that any international obligations would be breached as a result of cancellation.

25. The Tribunal has considered and weighed up all of the relevant circumstances in this case, including the circumstances in which the applicant ceased employment following his work injury and treatment by his former employer, the obligations he has towards his family in Ghana, the reasons for why he prefers to remain in Australia, his attempts to find another sponsor and other matters detailed above. While the Tribunal has given these considerations some weight, of significance is the fact that the applicant has not worked for an approved sponsor since December 2014 and that he has been unable to secure another nomination. The Tribunal considers that even if the applicant’s 457 visa is not cancelled, he would be unable to continue to meet the requirements for the 457 visa, given he is not the subject of an approved nomination.

26. Having regard to the circumstances as a whole, the Tribunal considers the reasons for cancelling the visa outweighs the reasons for not cancelling the visa.

27. For the reasons above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Rania Skaros

    
    

    Member