1510756 (Migration)

[2015] AATA 3775

1510756 (Migration) [2015] AATA 3775 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Naelesoni Toqitoqi Tagivetaua
Mrs Naomi Saurara Ratucoko Tagivetaua
Miss Loraini Kirisitiana Ratucoko Tagivetaua

CASE NUMBER:  1510756

DIBP REFERENCE(S):  BCC2015/1588881

MEMBER:Christopher Smolicz

DATE:26 November 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 26 November 2015 at 12:03pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 July 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 did not comply 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 24 November 2015 to give evidence and present arguments.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant.

5. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

6. The Tribunal raised the jurisdiction issue with the applicant and his agent at the hearing. The agent conceded that the Tribunal did not have jurisdiction in relation to second and third named applicants.

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(3)(b) attached to the applicant’s visa. This condition requires that if the applicant ceases his employment, the period during which he has ceased employment does not exceed 90 days.

10. According to the delegate, the applicant’s sponsor and employer, Thiess Services Pty Ltd (Thiess), notified the Department that the applicant’s employment ceased on 27 February 2015.  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 conceded that he remained unemployed until about September 2015 after he ceased his employment with Thiess. The applicant does not dispute that the ground for cancellation is established or any of those essential facts.

11. The Tribunal finds 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 the Tribunal to take into account a range of circumstances and decline to cancel the visa in his circumstances.

12. 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

13. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

14. The applicant is a Fijian National. He first arrived in Australia with his wife in April 2012 as the holder a subclass 457 visa. Their daughter arrived in February 2013.

15. He was originally sponsored by Silcar Pty Ltd (Silcar) for the position of Design Engineer, working in Western Australia. The applicant submitted that he was informed by Silcar that after two years of continuous service they would sponsor him and he would be able to remain permanently in Australia.

16. In 2013 Silcar went through a restructure. On 2 December 2013 the applicant received a letter from Thiess and Silcar informing him that Thiess would replace Silcar as his new employer from 1 February 2014.

17. On 17 April 2014 Thiess became the applicant’s new sponsor. The applicant submitted that Thiess also promised to sponsor him for a permanent visa. The applicant said he retained KPMG to assist with a subclass 186, Employer Nomination application seeking permanent visa to remain in Australia. The applicant provided the Tribunal with correspondence dated 29 May 2014 from KPMG in support of this evidence.

18. On about 21 January 2015, the applicant received correspondence from Thiess advising him that his position would be made redundant. The Tribunal was provided with a copy of the redundancy letter which confirms that Thiess said it would notify the Department about the change of employment. The letter advise the applicant that he has 90 days from 27 February 2015 to either find an alternative sponsor or depart Australia. The letter offers the applicant $2000 to assist with airfares should he choose to return to Fiji.

19. The applicant conceded that he does not have a new sponsor but is employed on a casual basis as an electrical engineer/designer by Visionstream for the next eight months and then his contract will be reviewed. The applicant said Thiess was taken over by Visionstream and they have no plans to sponsor him to remain in Australia.

20. The applicant submitted he has been searching for an alternative sponsor but has had no luck. The applicant provided the Tribunal with various emails in support of his attempts to obtain employment and a sponsor during this period.

21. The applicant claims that he wants to remain in Australia so that he has more time to find a sponsor.

    Circumstances in which the grounds for cancellation arose

22. According to the redundancy letter the applicant’s employment with Thiess ceased because of a down turn in work which has required the company to restructure and reduce its operations. The Tribunal accepts the applicant commenced looking for a new sponsor as soon as his employment with Thiess ended in February 2015. The Tribunal notes that despite the applicant best efforts he has been unable to find a new sponsor and was unemployed for a about seven months.

    The extent of compliance with visa conditions

23. The applicant submitted that he relied on the Thiess to advise the Department about his change in circumstances in accordance with the terms of their letter. The applicant submitted that if he had correct migration advice at the time he would have applied for an extension of time to allow him to find an alternative sponsor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) including whether there would be consequential cancellations under s.140

24. The applicant submitted that if he is sent back to Fiji his wife and daughter would suffer “significant hardship”.

25. The applicant submitted that prior to coming to Australia he had a good job and good income. His wife was employed and they owned a house and were comfortable. The applicant submitted that in response to the offer made by Silcar he and his wife decided to uproot his family, sell their family home, car and move to Australia. The applicant submitted that if Silcar had informed him that this was only a temporary move he would not have sold his property in Fiji. The applicant said that life in Australia is expensive and he does not have any savings and owes his uncle $10,000 for assisting him with living costs after he was made redundant.

26. The applicant said that there are few job opportunities in Fiji. He has no land and if he returns to Fiji he will have no option but to move in with his relatives until he and his wife are able to find employment and a place to live.

27. The applicant said that his father has passed away and his mother has no income. His brother and his wife and children live with his mother and he would need to live with his wife’s mother and the wife’s extend family.

28. The applicant submitted that his family have settled well in Australia and attend the local church and have support of their parish. His daughter is attending the local school and they have support from the local community.

29. The Tribunal questioned the applicant about his employment history in Australia. The applicant said that since he arrived in Australia he was working full time earning about $90,000 per annum. After he was made redundant in February 2015 he needed to re apply for his work rights and commenced employment with Visionstream in September 2015. He now earns about $80,000 per annum. The applicant said he received $17,000 redundancy payment from Thiess and they offered to pay $2000 to assist with his return travel to Fiji.

30. The applicant said that his Australian employers have provided him with positive work references and the decision not sponsor him appears to be related to the current economic environment and needs of the company.

31. The Tribunal notes that the applicant attended Fiji National University and completed an Electrical Engineering degree. In the period 2000 to 2012 he worked for Telecom Fiji as a Service Engineer. He described his employment situation in Fiji as well paid and secure.

32. The applicant’s wife has 12 years experience as a teacher in Fiji. Since arriving in Australia his wife has completed a Certificate IV and Diploma in Work Health and Safety.  

33. The Tribunal finds that the applicant is well qualified and has a good employment history in Fiji and in Australia. The Tribunal accepts that it is inevitable that applicant will need to search for work in Fiji if his visa is cancelled.  Having regard to the applicant’s qualifications and work experience the Tribunal finds that he will be well placed to find employment in Fiji.

34. The Tribunal notes that the applicant’s wife has been able to obtain qualifications in Australia and has worked as teacher in Fiji. The Tribunal finds that the applicant’s wife is also well placed to re-enter the workforce in Fiji.

35. The applicant’s daughter was born on 28 November 2015. She has been attending schooling in Australia since February 2013. There is no suggestion she will be unable to complete her schooling in Fiji.

36. The applicant said that he has been financially helping his family in Fiji since he has arrived in Australia. The Tribunal notes that the applicant’s wife’s family helped to care for his daughter when the applicant first arrived in Australia. The Tribunal find the applicant has family support in Fiji to help look after his daughter while he and his wife look for work.

37. The Tribunal accepts that the applicant and his family will need to live with relatives until he or wife are able to secure employment and find accommodation. Tribunal accepts that this will cause some disruption and inconvenience to the applicant and his family. The Tribunal does accept that this would result in significant hardship.

    Past and present conduct of the visa holder towards the department

38. The Tribunal is not aware of any adverse conduct by the applicant in relation to the Department.

    Other relevant matters

39. The Tribunal asked the applicant if there were any other reason why he did not wish to return to Fiji. The applicant said that his family were in good health and there was no other reason why he did not wish to return to Fiji apart from financial hardship and his desire to remain in Australia where he was work and is contributing to society.

    Conclusion

40. As outlined above, the Tribunal has considered the Department’s policy and the applicant’s personal circumstances.

41. The Tribunal is concerned that the applicant’s employment with Thiess ceased on 27 February 2015 and to date he has been unable to obtain a new sponsor. As stated above, although the applicant is employed there is no guarantee the applicant’s employment will be renewed after 8 months.

42. The 457 visa provides streamlined entry arrangements for businesses employing staff from overseas on a temporary basis and is designed to fill skills shortages in the Australian labour market. The Tribunal finds that practical reality of the applicant’s situation is that he travelled to Australia on a temporary work visa that was due to expire on 21 February 2016.

43. The Tribunal notes that despite his employer’s initial offer to sponsor him for a permanent visa after two years continuous service the applicant should have been aware that a business sponsorship application is subject to the economic environment, skill shortage in Australia, the sponsor’s ongoing needs and approval by the Department. The applicant did not dispute this at the hearing.

44. There is nothing before the Tribunal to suggest the cancellation would result in indefinite detention, other cancellations or a breach of international obligations. There is no evidence or submissions that the cancellation will impact on victims or family violence; or that it will lead to Australia breaching any of its international obligations.

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

    DECISION

46. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Christopher Smolicz
    Member