1510055 (Migration)

[2016] AATA 3718

1510055 (Migration) [2016] AATA 3718 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francisco Ramos

CASE NUMBER:  1510055

DIBP REFERENCE(S):  BCC2015/1561435

MEMBER:Denise Connolly

DATE:11 April 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 11 April 2016 at 2:23pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 July 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 was granted the Subclass 457 visa on 7 February 2012, valid until 7 February 2016. He was most recently sponsored by Ahrens Group Pty Ltd (Ahrens) to work in the nominated occupation of Welder (First Class).  Condition 8107 was attached to the visa. It requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

3. The Department received notification that the applicant had ceased employment with Ahrens effective 10 February 2015. The Department wrote to the applicant on 11 June 2015 issuing a Notice of Intention to Consider Cancellation (NOICC). He responded on 16 June 2015 and asked that the Department hold off cancelling his Subclass 457 visa because he was looking for another job.

4. The delegate’s decision record, provided to the Tribunal by the applicant, indicates that there was no evidence before the delegate that the applicant was the subject of an approved nomination that had not ceased, at the time of the delegate’s decision. The delegate cancelled the visa under s.116(1)(b) because she found the applicant had not complied with conditions imposed on his Subclass 457 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.

5. The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

6. The applicant was represented in relation to the review by his registered migration agent who 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.

   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 visa 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 7 February 2012. It was granted on the basis of an approved nomination for the position of Welder (First Class). The most recently approved nomination of which the applicant was subject, prior to the delegate’s decision, was sponsored by Ahrens.   At the hearing the applicant confirmed that he started working for Ahrens in September 2012.  He confirmed that he ceased that employment in February 2015. The reasons he ceased working for Ahrens are discussed in more detail below.

11. The Department received written notification from Ahrens that he ceased employment with that business on 10 February 2015.The applicant confirmed at the hearing that he ceased employment with Ahrens in February 2015. He claims he started working for another employer, Panelvan Conversions, in May 2015 however there is no evidence that his employment with Panelvan Conversions is a SBS and had a nomination, of which the applicant was the subject, approved.

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 February 2015. There is no evidence that the applicant has returned to work for the sponsor, Ahrens. Based on the evidence before the Tribunal the most recently approved nomination, of which the applicant was subject, was sponsored by Ahrens. 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’.

15. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It notes that when the applicant was notified of the intention to consider cancellation the applicant responded on 16 June 2015 by requesting that he be given more time to look for another job. He claimed he was using his personal savings to support himself. The delegate noted however that no new nomination had been approved for the applicant.

    Evidence provided at the hearing on 17 November 2015

16. At the hearing the applicant’s representative provided written submissions as to why the visa should not be cancelled. He was originally sponsored by Swift Engineering however on his arrival in Australia he was told the business was experiencing financial difficulties and he had to find a new sponsor. He has a wife and a child to support. His family had taken out loans (about A$5700) for the applicant to travel to Australia, which he still owed, and he cannot afford to repay the loan by working in the Philippines. He secured sponsorship with Ahrens however they experienced a downturn and he was laid off in February 2015. He has found a new employer, Panelvan Conversions (Muscat Family Trust). The business is making sponsorship and nomination applications. The representative provided copies of the acknowledgements of applications received, dated 17 November 2015. Neither of those documents refers to the applicant.

17. The Tribunal discussed with the applicant all of the circumstances to be considered in exercising its discretion. He claimed that he worked for Panelvan Conversions from May 2015 until his Subclass 457 visa was cancelled in July 2015. The Tribunal noted that his new sponsor only lodged their sponsorship and nomination applications the day before the hearing. The applicant did not know why they had left it so late. The applicant’s representative indicated that she was responsible for the timing of the sponsor’s applications. They were reluctant to pay for the applications if his visa was going to be cancelled.

18. The Tribunal asked the applicant if he had working for the sponsor since July 2015. He indicated he had not been working for them as he did not have permission to work. The Tribunal asked what he had been living on if he had not worked for 5 months, as it is expensive to live in Sydney. He said he still had savings from when he worked as he had saved about $10,000. He also said that sometimes his family in the Philippines sent him money. He did not have any evidence of bank transfers or bank statements showing his savings. When the Tribunal questioned whether he did in fact have sufficient savings to cover living expenses from savings he said he had been paid cash in hand for work he had undertaken at a vineyard. He indicated this was work he had done before he worked for Ahrens. The Tribunal noted that this appeared to be inconsistent with the written submission that he had to work in Australia to support his family and repay outstanding loans taken out by his family, suggesting the family did not have the financial resources to be sending him money. He said in 2013 he had repaid the loan taken out by the family.

19. The Tribunal asked why the applicant now wishes to remain in Australia. He indicated he wants to work for Panelvan Conversions and then apply for permanent residence because he wants his family to migrate to Australia. However he did not know what class of visa he would apply for. The Tribunal noted this did not appear to be a concrete plan.

20. The Tribunal asked the applicant about any hardship that might be suffered. He indicated he has repaid the loan in the Philippines and he has been able to live off savings in Australia. However he currently has only $2300 left in savings.

21. The Tribunal asked about the circumstances in which the cancellation ground arose. He confirmed it was because he was made redundant by Ahrens. The Tribunal asked if he had any written evidence of this. He claimed he threw the letter in the bin.

22. The applicant indicated his life and family depend on the Subclass 457 visa. The Tribunal noted that the applicant’s claims at the time of the hearing in relation to future employment in a skilled occupation are speculative, as his prospective employer is not an approved standard business sponsor, and there is no approved nomination of which he is the subject. It noted that an important consideration is whether the applicant is the subject of an approved nomination to work in the nominated occupation. The applicant indicated that he wished for the Tribunal to wait for the sponsor’s applications to be finalised. The Tribunal agreed to give the applicant further time.

    Post hearing submissions

23. The Tribunal agreed to wait until 27 November 2015 for further evidence that the sponsor intends to sponsor the applicant. This was provided confirming a nomination application had been made for the applicant to work in the occupation Welder (First Class). The Tribunal then agreed to wait until 29 January 2016 for evidence that the applicant is the subject of an approved nomination.

24. On 29 January 2016 the applicant sought another month as the Department had not made the decision in relation to the nomination application. The Tribunal agreed to wait until 26 February 2016.

25. On 1 March 2016 the applicant sought further time claiming the Department had still not made its decision. The Tribunal agreed to wait until 1 April 2016. The representative advised that if the information is not made available by then, the Tribunal should make its decision on the basis of the evidence before it.

26. The applicant has not provided any further evidence to the Tribunal. Nor has he sought further time to provide evidence. The Tribunal is of the view it has given the applicant ample opportunities to provide evidence that he is the subject of an approved nomination, or any other relevant evidence, however he has not done this. It now proceeds to make its decision on the basis of the evidence before it.

    Assessment of the evidence

27. The Tribunal has considered the applicant’s evidence regarding his travel and stay in Australia, and whether there is a compelling need to remain in Australia. The applicant has claimed that he wishes to remain in Australia to work for the sponsor, Panelvan Conversions. However he has not provided evidence that he is the subject of an approved nomination. He also claims he has not worked for the sponsor since July 2015. He claims he has been living off savings but also admitted that at some stage he had been working cash in hand on a vineyard. The Tribunal is not satisfied there is evidence that the applicant will remain in Australia to work for an approved SBS to fill a labour shortage in a skilled occupation, as the subject of an approved nomination. The applicant also indicated he wants to remain in Australia to secure permanent residence. While this is sometimes possible it is not the intention or aim of the Subclass 457 visa program. The Tribunal is concerned that the applicant may wish to remain in Australia to work in any occupation, not necessarily a skilled occupation.

28. The applicant claims that condition 8107 is the only visa condition he has breached. He claims he has not been working in Australia since July 2015 because he did not have permission to do so. The Tribunal has some concerns about whether it is the case that he has not been working. He mentioned work he had done at a vineyard for cash but when asked for further detail indicated it was before he worked for Ahrens. The delegate indicated he has not breached any other visa conditions. The Tribunal takes this into account.

29. The Tribunal has considered the applicant’s submissions about any hardship that may be caused by a cancellation. It notes the written submissions indicate that he supports his family in the Philippines and still owes the debt incurred to travel to Australia. However his oral evidence indicates that he repaid this debt in 2013. The Tribunal also notes the applicant wants to remain in Australia to pursue permanent residence however this appears to be speculative as he was not sure which visa class he would pursue. The Tribunal accepts that the applicant may suffer some financial hardship if he is required to go offshore. However there is no evidence before it that the applicant has been earning an income in Australia since July 2015 so there is nothing to suggest the applicant would be forced to leave secure employment. The Tribunal acknowledges that Panelvan Conversions has now made the applications to the Department. However no submissions have been made that the sponsor would be adversely affected by the applicant’s visa being cancelled.

30. The Tribunal has found the applicant ceased employment with his sponsor for more than 90 days. The applicant claims the cancellation ground arose because his sponsor Ahrens experienced a downturn and he was laid off in February 2015. The Tribunal has not seen a redundancy letter – the applicant claims he threw the letter away. Once the applicant finished his employment with the sponsor in February 2015 he then had an opportunity to secure employment with another approved SBS. He has not been able to do this.

31. The delegate records that the applicant has been cooperative with the Department. The Tribunal finds there are no concerns regarding his behaviour towards the Department and takes this into account. There is no evidence suggesting there would be consequential cancellations under s.140. Nor is there any evidence indicating that any international obligations would be breached as a result of the cancellation.

32. Having considered all of the evidence before it, the Tribunal accepts that the applicant lost his employment with Ahrens, his approved sponsor. He claims this was because they experienced a downturn and he was laid off in February 2015 although he did not provide any documentary evidence confirming this. He now wants to remain in Australia to work for Panelvan Conversions however he has not provided evidence that a nomination has been approved for the applicant to work in a skilled occupation. He wants to remain in Australia and apply for permanent residence however this is not the purpose of the Subclass 457 visa program. Its purpose is to fill a labour shortage by working for an approved sponsor in a skilled occupation, as the subject of an approved nomination. There is no evidence before the Tribunal that the applicant will do that in the foreseeable future. The Tribunal is of the view he has had ample time since the delegate cancelled his visa to secure employment in a position the subject of an approved nomination and he has not done this. It gives this factor significant weight. The Tribunal has some concerns that his evidence regarding hardship is inconsistent and therefore unreliable. In writing he has submitted that he has to repay a loan however at the hearing he indicated he repaid that loan in 2013. The Tribunal is also concerned the evidence regarding his ability to reside in Australia since July 2015 without an income may not be reliable. However it is satisfied the Department does not have concerns regarding past and present conduct. There are no consequential cancellations or concerns regarding the breach of any international obligations. Overall weighing up all of the evidence before it, the Tribunal is of the view that the appropriate decision in this case is to cancel the visa.

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

    DECISION

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

    Denise Connolly
    Member