1513971 (Migration)

[2016] AATA 3190

1513971 (Migration) [2016] AATA 3190 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Stephen Gerard O’Shaughnessy

CASE NUMBER:  1513971

DIBP REFERENCE(S):  BCC2015/2016285

MEMBER:Bruce Henry

DATE:9 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 09 February 2016 at 3:42pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 October 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 had ceased to work for the employer that had sponsored him for the visa on 26 March 2015 and had not responded to the Notice of Intention to Consider Cancelling his visa that was sent to him on 17 August 2015. 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 5 February 2016 to give evidence and present arguments.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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) that a person has failed to comply with a condition of their visa. 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?

7. 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 provides, so far as is relevant:

   (3)  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: …

   (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; …

   (aa)  subject to paragraph (c), the holder must:

   (i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and

   (ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

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

   (3A)  For subparagraph For subparagraph (3)(a)(ii), the circumstances are that:

   …

   (aa)  if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

   (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

8. The Tribunal notes that the applicant was sent a Notice of the Intention to Consider Cancellation (NOICC) on 17 August 2015 and that he did not respond to the notice.

9. The applicant does not contest the fact that he ceased his employment with his sponsoring employer, Laing O’Rourke in March 2015. He described the circumstances in a statement provided to the Tribunal:

   Laing O'Rourke approached me and offered to sponsored me if I'd come and work for them in Australia June 2013 to manage their plant and equipment in remote projects, the roll consisted of assessing the requirement of plant and equipment to service the projects, the roll also consisted of recruiting personal to operate the equipment and for servicing and maintenance and providing a safe work environment and building a network with suppliers and subcontractors.

   The projects I've worked on were mining projects both in QLD and WA. The Queensland projects were LNG (Liquefied Natural Gas) and the project in WA was in Port Hedland, Roy Hill Project (Iron Ore Project)

   The projects in QLD were well established and due for completion in late 2014.

   Lang O'Rourke won the Roy Hill project and I was transferred to WA Port Hedland as part of the project management team mid-2014 to mobiles to site and setup offices and work stations, assess plant and equipment required and also personal.

   Toward the end on 2014 it was becoming evident that there was concerning matters between LOR and the client with regards to commercial and work variations, this placed a number of employees at risk and with LOR announcing layoffs in there QLD projects and also another one of their projects in Darwin (Ichthys LNG Project).

   On February of 2015 it was announced that LOR had lost the Roy Hill project and were ordered to remove their workforce from site immediately, leaving just a skeleton team on site to complete the demobilisation and once completed I would be transferred to another project or based in there Brisbane HQ office for future projects.

   I was part of the skeleton team to demobilise the site and during the demobilisation it became evident the mining industry was suffering a downturn and also rumours started that LOR might be in financial difficulty and it was difficult to get a straight answer as to the security of my future.

   It was announced Laing O'Rourke was for sale late 2015.

   It was at this time I was exploring my options and looking for opportunities, ideally using my experience outside the mining industry.

10. 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

11. 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’.

12. The departmental guidelines cover such matters as:

    ·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;

    ·the extent of compliance with visa conditions;

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    ·circumstances in which ground of cancellation arose. The 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;

    ·past and present conduct of the visa holder towards the department;

    ·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; and

    ·any other relevant matters.

13. In a statement provided during the course of the review the applicant further described the actions he had taken to establish his own company to secure employment. In his evidence at the hearing he explained that he had done this because it was clear to him that employment options in the mining industry were very limited due to the downturn in activity in that sector of the industry.

14. After the hearing the applicant provided the Tribunal with a copy of the redundancy letter that he received from Laing O’Rourke, which is dated 26 February 2015 and which states that during the next four week period the company would continue to search for ‘redeployment opportunities’ throughout Australia for the applicant. It is clear from this letter and from a search of the internet that the applicant’s claims regarding the business of his sponsor are true, and that he was one of many hundreds of workers who lost their jobs when the company experienced problems in 2015. It is also apparent that these events need to be seen against the background of job losses in the mining sector generally in Australia in 2015. In this context, the Tribunal has no difficulty accepting the applicant’s evidence that he lost the position for which he was granted his subclass 457 visa due to factors beyond his control.

15. The Tribunal is also satisfied that the steps taken by the applicant in the 90 days following the loss of his employment with Laing O’Rourke were motivated by his desire not to be in breach of condition 8107. Rather than apply for other positions in the mining sector, which in his judgement would have been a fruitless task, he sought to secure sponsorship through the establishment of his own business. The Tribunal is satisfied on the evidence that he was successful in establishing such a business, and that the business was approved as a standard business sponsor by the Department on 21 October 2015, shortly after the cancellation of his visa. He has provided the Tribunal with a copy of the sponsorship approval, and the Tribunal notes that the nomination and visa application associated with the sponsorship remain outstanding at the Department.

16. The applicant also provided to the Tribunal evidence of substantial expenses incurred by him in establishing this business, including the purchase of nine separate business franchises, all purchased in May and June 2015 for businesses in regional Queensland, and a business plan for his company prepared in May 2015. On the basis of these documents and the applicant’s evidence at the hearing the Tribunal is satisfied that all of this expenditure was made in preparation for the lodgement of the application for approval of a business sponsorship for his company, and clearly demonstrate the applicant’s commitment to complying with the conditions of his visa.

17. The Tribunal asked the applicant why, given that his business was established and these expenditures incurred well before the NOICC was issued to him, he had not brought these matters to the attention of the Department. He responded that at the time he received the NOICC he understood that his representative was dealing with the Department about his application for approval as a business sponsor, and did not consider it necessary to deal separately with the notice. The representative advised the Tribunal that the lodgement of the applications for approval of the business sponsor, the associated nomination of the applicant and the new visa application had been delayed because the necessary supporting documents from the applicant’s accountant were not ready. As is noted in the decision record, the relevant applications were lodged on 24 August 2015, one week after the NOICC was sent to the applicant.

18. The Tribunal asked the applicant if he was aware that the cancellation of his visa would mean that a three year exclusion period would apply to prevent him from returning to Australia on a subclass 457 visa, and he stated that he was aware of this and was very concerned that he would lose his substantial investment in the franchise businesses referred to above. He stated that he was also aware that it may be necessary for him to leave Australia to apply for a new subclass 457 visa, but that he is prepared to do this if required.

19. In the circumstances, the Tribunal accepts that the cancellation of his visa would cause severe financial hardship to the applicant, whose original breach of the visa condition occurred due to circumstances clearly beyond his control. The Tribunal also accepts that apart from his failure to respond to the NOICC, the applicant has done all in his power to comply with the conditions of his visa and has never sought to avoid his responsibilities to the department.

20. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Bruce Henry
    Member