1515901 (Migration)

[2016] AATA 3519

1515901 (Migration) [2016] AATA 3519 (16 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alfonso Jr Adaci Ligos

CASE NUMBER:  1515901

DIBP REFERENCE(S):  BCC2015/2383885

MEMBER:Carolyn Wilson

DATE:16 March 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 16 March 2016 at 11:58am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 November 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 the applicant had not complied 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 15 March 2016 to give evidence and present arguments.

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

5. 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

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). 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 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[1]:

   (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

   [1] 8107(3A) does not apply in this case.

8. The applicant does not deny that he ceased working for his sponsoring employer in August 2014 when he departed Australia.  He went to Canada to work, after there was a downturn in his employment in Australia and because he had been granted a temporary work visa for Canada.  However, he says there was similar uncertainty with the work in Canada and he did not like the extreme weather.  After working for 5 months in Canada he returned to Australia in January 2015.  He discovered his sponsor had ceased trading and began looking for another sponsoring employer.

9. The applicant has not worked in Australia since August 2014. In particular, he ceased working for his sponsor when he departed Australia on 12 August 2014.  He has not been working in the business of the sponsor, or an associated entity, and had ceased working there for a period exceeding 90 consecutive days.

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 applicant’s purpose in travelling to Australia was to earn money to support his family in the Philippines.  The visa was granted on 2 July 2014 to allow him to work temporarily as a Metal Machinist for his sponsoring employer UI Projects WA Pty Ltd.  However, on 12 August 2014 the applicant departed Australia to work in Canada. He claimed he was not being given skilled work by his sponsor but was working as a labourer instead, hence his decision to look for other skilled work. The Tribunal gives considerable weight to the short period of time he worked for his sponsor and his decision to depart Australia and work in Canada.

13. The applicant claims the visa cancellation, and in particular his loss of work rights since holding a Bridging visa, has caused harm to his relationship with his wife since he can no longer financially support her.  The Tribunal gives this circumstance little weight as it considers it was the applicant’s decision to return to Australia from Canada, in circumstances where he had work in Canada but no ongoing employment with his sponsor in Australia.  It was also his decision to remain in Australia without work rights. 

14. The Tribunal notes there are no issues of consequential cancellations under s.140 and nothing to indicate any international obligations would be breached as a result of the cancellation.

15. The applicant submits his new sponsor has a critical need for him to work in their business.  He claims his new sponsor TAS Screen Printing Equipment Pty Ltd has been willing to employ him since February 2015.  The Tribunal notes the nomination was approved by the Department on 11 December 2015.  The new sponsor says they have difficulty retaining Metal Machinists as they move on to work in the mining industry and they have a large turnover of staff.

16. The Tribunal has considered the applicant’s claims both singularly and cumulatively.  It has considered the hardship that will be caused to the applicant and his potential employer if the visa remains cancelled.  The Tribunal gives greater weight to the purpose of the visa, that is, to work temporarily under the 457 program for an approved sponsor.  The applicant worked for his approved employer for less than 6 weeks following the approval and visa grant.  The applicant failed to notify the Department he had ceased work and relocated to Canada.  The Tribunal has given greater weight to these matters than to the hardship the cancellation will cause. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Carolyn Wilson
    Member