1512359 (Migration)

[2016] AATA 3025

1512359 (Migration) [2016] AATA 3025 (6 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Christian King
Ms Abigail Murillo King
Ms Ginger Ashley King
Mr Cochise John King
Mr Comanche John King
Mr Connor John King

CASE NUMBER:  1512359

DIBP REFERENCE(S):  BCC2015/1958933

MEMBER:Sue Raymond

DATE:6 January 2016

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 has no jurisdiction with respect to each of the other applicants.

Statement made on 06 January 2016 at 12:07pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 September 2015 made by a delegate of the Minister for Immigration to cancel the first named 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) of the Act on the basis that the first-named applicant had not complied with condition 8107 which was imposed on his visa, specifically that he ceased employment with his sponsoring employer, Halliburton Australia Pty Ltd, for a period in excess of 90 consecutive days. 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.    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. 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them. Consequently, the Tribunal will only deal with the first-named applicant’s application and hereafter refer to him as “the applicant”.

4.    The applicant appeared before the Tribunal on 11 December 2015 to give evidence and present arguments. His wife, Ms Abigail King, also appeared to give evidence. In giving her evidence Ms King was assisted by an interpreter in the Tagalog language. The applicant did not require the assistance of the interpreter as his English was proficient.

5.    The applicant was represented in relation to the review by his registered migration agent who also attended the hearing. Following the hearing the Tribunal received a letter dated 22 December 2015 with 27 attachments from the representative. The Tribunal has considered that further material in reaching its decision. The Tribunal also considered the photographs and other documents supplied at the hearing.

6.    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

7. 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?

s.116(1)(b) - non-compliance with conditions

8. 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. The Tribunal is satisfied that condition 8107 is attached to the applicant’s subclass 457 visa which was granted on 25 June 2013. This issue was not disputed at the hearing. The Tribunal notes that clause(3)((b) of that condition states “if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days”. The Tribunal notes that the visa was granted on 25 June 2013. At that time condition 8107(3)(b) contained a requirement about cessation of employment for a period of “28 consecutive days”. By virtue of the Migration Amendment (Temporary Sponsored Visas) Act 2013 (No.122, 2013)-Schedule 3, the reference to 28 days was omitted and “90 consecutive days” was substituted. The amendment applies in relation to a visa that is in force on or after the commencement of the Schedule and with effect from the time the visa was granted, whether before, on or after the commencement of the Schedule. Section 2 of the Amendment Act provides that schedule 3 commences on the 30 June 2013. The effect of this amendment is that although the requirement was 28 days at the time the applicant obtained his visa, the relevant number of days is “90 consecutive days”. The amendment is favourable to the applicant as more time is allowed to obtain other employment.

9.    Based on the oral and documentary evidence before the Tribunal, it makes the following findings in relation to uncontroversial matters:

·    The applicant arrived in Australia in August 2013 on a subclass 457 visa to work as an equipment operator with Halliburton Australia Pty Ltd (hereafter called “Halliburton”).

·    He worked in the Moomba Gas fields as a fly in fly out worker.

·    In about October 2014 he broke his foot and was not able to return to work.

·    On about 10 February 2015 he was made redundant and did not work for Halliburton thereafter.

·    He was paid income protection insurance payments for a period following his redundancy.

·    The applicant was able to do some consulting work for another employer, Drover Energy Services, in late September to mid-October 2015.

1. The Tribunal is satisfied that the applicant ceased working for his sponsoring employer, Halliburton, on about 10 February 2015 and has not resumed working for the employer. On the information before it, the Tribunal is satisfied that the applicant ceased employment for 90 consecutive days following 10 February 2015.

2. In terms of notification of the primary decision to the applicant the Tribunal observes that the notice of intention to cancel the visa was sent by email to the applicant on 4 August 2015 advising of the basis of the cancellation. It outlined the ground of cancellation of the visa and referred to paragraph 8107(3)(b) as the basis of the cancellation. The Tribunal notes that there were some issues surrounding the response to the notice and ultimately no response was received before the cancellation decision was made. However, the Tribunal is satisfied that the applicant was properly notified of the notice of the intention to cancel the visa and the decision.

3. 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

1. 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’.

2. Before dealing with specific matters the Tribunal sets out background information about the applicant and his family in relation to his employment in Australia. The applicant came to Australia from the Philippines in August 2013 and his wife and three elder children followed him to Australia in late April 2014. Another child of the applicant and his wife has been born since they have been in Australia.

3. The applicant has skills working with coil tubing which is utilised in oil and gas wells. He has worked in the Middle East utilising these skills. The applicant was of the understanding, which he says was gleaned from his employer, that after two years he would be eligible to be sponsored for permanent residency in Australia. He said further that several employees of the company had been made permanent in that fashion. The applicant had worked abroad but he said that he took the job in Australia because of the location and because of the two week on, and two week off, roster. The Australian position allowed him to live closer to his family

4. On the information before the Tribunal, it accepts that the applicant was dismissed through no fault of his own, from his employment and the applicant’s adviser informed the Department of Immigration of the cessation of employment. The Tribunal also accepts that he became depressed following the redundancy (although he did not seek medical treatment and the Tribunal does not find there is a diagnosed depressive condition). The Tribunal accepts that although the visa is a temporary visa the applicant had an expectation of obtaining permanent residency through sponsorship with the employing company.

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

1. The applicant came to Australia on a temporary visa. The visa was current until June 2017. The applicant came to work with Halliburton in the Moomba gas fields as an equipment operator. The applicant came with an expectation that he would be able to apply for permanent residency in a couple of years and sold everything up in the Philippines. His family, comprising his wife and three children joined him in Australia about eight months after his arrival. A further child has been born in Australia. The applicant wishes to remain in Australia with the hope that he can work and provide for his family. Whilst the Tribunal accepts that the applicant had an expectation of permanent residency, the fact is that the visa is a temporary work visa aimed at filling skills shortages that cannot be met from local labour market in Australia. Unfortunately for the applicant, the employment has ceased when he was made redundant. Whilst the Tribunal appreciates that the applicant and his family wish to remain in Australia the purpose of his travel and stay has prematurely ended.

2. Whilst the representative in her written submissions made reference to a failure in the employer’s duty of care to the applicant and his family the Tribunal is mindful that there is no ongoing litigation in relation to the cessation of his employment with Halliburton. In the documents referred to the Tribunal following the hearing, it is clear that a settlement was reached between the applicant and his employer in the context of an application made to the Fair Work Commission for a remedy alleging unfair dismissal. It is also clear that the employer denied the allegations. The Tribunal is mindful it only has evidence from the applicant about his employment (and not evidence from the employer) but the Tribunal does not deem it necessary to seek any further evidence in this regard. The Tribunal accepts that there is a strong desire for the applicant and his family to remain in Australia but this does not amount to a compelling need to do so.

The extent of compliance with visa conditions and past and present conduct of the visa holder towards the department

1. Aside from the lack of compliance with condition 8107, which the Tribunal accepts is not due to the fault of the applicant, there is no evidence before it of any other breaches or non-compliance with visa conditions by the applicant. There is no evidence that the applicant has been uncooperative with the Department.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The Tribunal accepts that the family have settled in Australia with the elder children attending school. The Tribunal received photographs at the hearing showing the three elder children at school, playing sport and with their friends. In addition there were prints of Facebook messages. The Tribunal accepts the applicant and each member of his family have settled into life in Australia, with an expectation that they could remain permanently in Australia. The Tribunal accepts that hardship, of an emotional or psychological nature, will be experienced by each of them in the circumstances if they are required to leave Australia. The Tribunal is mindful that the family members have been in Australia since April 2014, a period of about 20 months. The eldest child, Ginger, has turned 15; Comanche is aged nine years and Cochise is aged ten years. Connor, who was born in Australia, is aged one year. Whilst there will be hardship, the family unit will be together and the family came to Australia on temporary work visas. Whilst evidence was given to the effect that they had sold up everything to come to Australia, it appears that Mr King could obtain employment, potentially overseas, as he has done before. Consequently, any financial hardship would be ameliorated by that further employment.

Circumstances in which ground of cancellation arose.

1. There is no evidence before the Tribunal to suggest that the applicant was at fault in any way in being made redundant. He was obviously deeply affected by the redundancy and the consequences for him and his family. It was complicated by him suffering a foot injury (which resulted from him playing basketball) which affected his ability to engage in his work for some time. The applicant gave evidence that others were retrenched at the same time as him, including another 457 visa holder.  Whilst the PAM guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control[1] , in this case the visa is a temporary one for work purposes and the work is no longer available for the applicant with the sponsoring employer.

Whether there would be consequential cancellations under s.140

[1] Migration > 2016 > 01/01/2016 - > P. 01/01/2016 - > PAM3 - MIGRATION ACT > PAM - Visa cancellation instructions > General visa cancellation powers (s109, s116, s128 & s140) > [p2 of 3] General visa cancellation powers (s109, s116, s128, s134B and s140).>s116 Deciding Whether to Cancel-Matters that should be considered

1. The Tribunal finds that there are consequential cancellations of visas flowing from the cancellation of the primary applicant’s visa. The consequential cancellations will be for the visa applicant’s wife and his four children.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal to suggest any breach of international obligations. The applicant indicated that his fear of returning to the Philippines related to his children’s future and the quality of their life there. Based on the information before the Tribunal it concludes that the cancellation would not lead to removal of the applicant in breach of Australia’s non-refoulement obligations. Whilst there are children impacted by this decision, in terms of the consequential cancellation of their visas, they have spent the majority of their lives out of Australia, have been in Australia for less than two years and the children will not be separated from each other or from their parents by this decision.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made or granted by the Minister ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he and his family have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the decision.

2. The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa and (relevantly) held a visa which was cancelled under section 116 of the Act may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

The submissions of the representative

1. The applicant’s representative provided submissions in writing prior to the hearing. In those submissions she emphasised that the applicant and his family made a momentous decision to come to Australia in reliance on misleading promises of the sponsor that the job was secure and would lead to permanency in Australia. She referred to the fact that Halliburton terminated the employment contract citing retrenchment grounds 19 months into the three-year contract. She indicated that this has left the applicant and his family without options and feeling abandoned by the sponsor. The representative requested that the Tribunal refer the matter to the Department of Immigration and Border Protection on public interest grounds which are compelling and compassionate for submission to the Minister requesting that he exercise his discretionary powers under sections 351 and 417 Migration act. The representative asserted a failure of duty of care and other issues related to the engagement of the applicant.

2. The representative asserts conduct of the employer to entice the applicant to come to Australia because of his highly technical skills and with the promise of career advancement, a secure job and something that would ultimately lead to a permanent life in Australia. The documentary evidence before the Tribunal from the company is in the nature of standard contracts and does not disclose any other further job prospects.

3. The representative referred to issues associated with a lack of response to an email from the Department and the notification by direct email of the cancellation of the applicant’s visa. The Tribunal has considered this issue but finds that notification was appropriately given in the circumstances.

4. The representative also indicated that the family has made great progress in Adelaide with the children excelling and working hard at the schools. She refers to the fact that Ginger, the eldest child has completed year 10 and has been selected to attend the Flinders University maths/science schools. The representative concludes by indicating that it is a case in which the public interest “cries out” for the department to refer the matter to the Minister.

Conclusion

1. The Tribunal has considered the evidence and submissions in both the consideration of the decision to cancel the visa and also in the context of whether to refer the matter to the Minister for his Intervention.

2. The Tribunal has considered all of the circumstances and accords weight to both the hardship suffered by the applicant and his family; and also the circumstances in which the cancellation arose. Those matters militate against cancellation of the visa. The Tribunal accepts that leaving Australia will cause them hardship, that they have settled here and desire the quality of life that Australia can offer them. The sponsoring employer made the applicant redundant- apparently other employees were also made redundant at the same time. This is extremely unfortunate for the applicant and his family.

3. The Tribunal has accorded significant weight to the fact that the nature of the visa is a temporary visa, only valid until mid-2017. It is designed to fill skills shortages not met from the local labour market. Further, despite being retrenched in February 2015 there is no specific evidence before the Tribunal to suggest that the applicant would be sponsored by another employer or that any other substantive visa would be obtained. There is oral evidence referring to a skills assessment and Mr King gave evidence that he had sat an IELTS test. Whilst there was some mention of offers of jobs the evidence also suggested that the employers needed the applicant to have work rights. There is evidence of the short-term contract undertaken by the applicant in September and October 2015 there is no concrete evidence of ongoing employment, or a sponsorship proposal by any other employer.

1. Ultimately the Tribunal has concluded that the temporary nature of the visa coupled with the lack of concrete evidence about any ongoing employment, or a sponsorship proposal by any other employer outweigh the other factors. This is also in the context that the family members have spent less than two years together in Australia and, aside from the youngest child who was born in Australia, the other children have spent most of their lives in the Philippines. In addition, the consequence of the cancellation will not be separation of the children from each other or their parents.

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

3. The Tribunal has considered whether it should refer the matter to the Minister for him to consider exercising his discretion to make a favourable decision pursuant to section 351 of the Act. However in the circumstances, particularly given the temporary nature of the visa and a lack of any concrete evidence of future employment, the Tribunal declines to do so. The applicant, through his representative, is at liberty to make such a request directly.

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 each of the other applicants.

Sue Raymond
Senior Member